United States District Court, C.D. California
ORDER TO SHOW WHY HABEAS PETITION SHOULD NOT BE
DISMISSED AS MIXED
E. SCOTT UNITED STATES MAGISTRATE JUDGE
April 4, 2017, Petitioner Davon Westley Moore constructively
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Dkt. 1 [“Petition”] at
The Court has screened this Petition consistent with its
authority under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which provides
that a petition “must” be summarily dismissed
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court[.]” For the reasons
discussed below, the Court orders Petitioner to show cause
why the Petition should not be dismissed as mixed.
State Court Proceedings.
in the Los Angeles Superior Court convicted Petitioner of
first degree murder and found that the murder was committed
during the course of a robbery and a burglary, and that
Petitioner personally used a knife in the commission of the
killing. Petitioner was sentenced to life in prison without
the possibility of parole plus one year. (Petition at 3
¶ 1, 67.)
appealed to the California Court of Appeal in case no.
B260801. The California Court of Appeal affirmed his
conviction in a written opinion. (Petition at 65-73.) See
also People v. Moore, 2015 Cal.App. Unpub. LEXIS 8934
(Cal.Ct.App. Dec. 9, 2015). Petitioner then filed a petition
for review in the California Supreme Court, case no. S231249.
(Petition at 32-64.) The petition was denied on February 24,
2016. (Id. at 74.)
states that he did not file any habeas petitions in the
California courts with respect to this conviction.
(Id. at 4 ¶ 6.) The instant federal Petition
was constructively filed on April 4, 2017. (Id. at
Claims Raised in Federal Habeas Petition.
describing the grounds for relief in ¶ 8 of the
Petition, Petitioner states “See Appendix.” (Dkt.
1 at 6-7 ¶ 8.) The Court interprets this as
incorporating the grounds raised in the attached petition for
review that Petitioner filed in the California Supreme Court.
(Id. at 34.) Reading both in conjunction, the Court
interprets Petitioner's federal Petition as raising the
following three grounds for relief:
Ground One: The state trial court prejudicially
erred when it failed to instruct the jury that
Petitioner's co-defendant, Sabrina King, was an
accomplice as a matter of law and that her testimony should
be viewed with caution.
Ground Two: The jury instructions given by the state
trial court allowed the jury to convict Petitioner under an
erroneous theory of guilt (murder by lying in wait), and
there is no basis upon which to say his conviction is based
on a valid legal ground.
Ground Three: Petitioner's Confrontation Clause
rights were violated when a testifying pathologist recounted
the opinion of a non-testifying pathologist as to the cause
(Dkt. 1 at 6-7, 34.)
Ground One Does Not Allege a Violation ...