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King v. Davey

United States District Court, E.D. California

July 11, 2017

JERRY LEE KING, Petitioner,
v.
DAVE DAVEY, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding without counsel in an action brought under 28 U.S.C. § 2254. The court dismissed the petition on March 27, 2017 as partially unexhausted. ECF No. 36. Petitioner filed an amended petition on March 31, 2017 (ECF No. 38) and a motion to stay the case on April 14, 2017 (ECF No. 40). Respondent opposes the motion to stay, arguing that the amended petition includes an unexhausted claim and that a stay would be futile because any claims that would be added back after exhaustion in the California Supreme Court would not be timely. ECF No. 44. For the reasons that follow, it is recommended that the motion to stay be denied as premature. It is further recommended that the case be dismissed without prejudice and that petitioner be allowed the opportunity to file an amended petition containing only his exhausted claims. Accordingly, the court vacates the schedule set in the order filed April 6, 2017 (ECF No. 39) directing respondent to file an answer to the amended petition. A new briefing schedule will issue when appropriate.

         I. Background

         Petitioner was convicted of first degree murder with a sentencing enhancement in the Sacramento County Superior Court. ECF No. 14, Resp.'s Notice of Lodging Document in Paper, Lodged Document (hereinafter Lod. Doc.) No. 1. He received a sentence of fifty-years-to-life on April 25, 2014. Id. The California Court of Appeal affirmed the conviction on May 28, 2015. Lod. Doc. No. 2. The California Supreme Court denied review on August 26, 2015. Lod. Doc. Nos. 3, 4. Petitioner has filed one state habeas petition, in the state superior court. He has not filed a habeas petition in the California Supreme Court.

         In his original petition, petitioner asserted the following claims:

1. That his Fifth Amendment rights were violated when he was “manipulated by the courts to take the stand and incriminate myself” (ECF No. 1 at 15);
2. That his Sixth Amendment confrontation clause rights were violated when the trial court allowed Anthony Barnes to testify regarding statements made by the victim before his death;
3. That he was convicted of first-degree murder without sufficient evidence;
4. That (a) the trial court erred by allowing mentally-incompetent witness Loretta Turpen to testify and (b) petitioner's trial counsel was ineffective for not impeaching Turpen based on her mental health issues;
5. A second claim that the evidence was insufficient to support a first-degree murder conviction;
6. That his Sixth Amendment right to an impartial jury was violated because a juror knew the victim's grandfather and “hung out” with the victim's family outside the courtroom during trial;
7. That the trial judge erred by giving instructions on lying-in-wait and pre-textual self-defense because (a) the evidence did not support the instructions and (b) the two instructions oppose each other;
8. That trial counsel was ineffective for failing to review the instructions, particularly CALCRIM 3472;
9. That trial counsel was ineffective for failing to request proper jury instructions, ...

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