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Smith v. Clark

United States District Court, C.D. California

June 24, 2019

KEN CLARK, Respondent.



         This Final Report and Recommendation is submitted to the Hon. Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.[1]


         A. State Court Proceedings

         In 2016, a Los Angeles County Superior Court jury found Petitioner guilty of premeditated attempted murder. It also found that he had used a deadly weapon in the attack and caused great bodily injury. (Reporter's Transcript (“RT”) 1808-09.) The trial court determined that Petitioner had a prior strike and sentenced him to 23 years to life in prison. (RT 3316-17.)

         Petitioner appealed to the California Court of Appeal, which affirmed the judgement in a written decision. (Lodged Document Nos. 3-6.) He then sought review in the California Supreme Court, which was denied. (Lodged Document Nos. 7 and 8.)

         B. Federal Court Proceedings

         On December 18, 2018, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus in this court, claiming: (1) trial counsel was ineffective for failing to request a jury instruction; and (2) the trial court abused its discretion when it granted Petitioner's request to represent himself after the trial. (Petition at 5.)



         The following facts, including the footnote, were taken verbatim from the California Court of Appeal's opinion affirming Petitioner's conviction:

[Petitioner] was charged with the attempted murder of Gregory Whitaker (Whitaker), in violation of Penal Code sections 664 and 187, subdivision (a).[2] The information also alleged that the attempted murder was willful, deliberate, and premeditated, that [Petitioner] used a deadly and dangerous weapon (a knife) in the commission of the crime, within the meaning of section 12022, subdivision (b)(1), and that [Petitioner] inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a). The information further alleged that [Petitioner] had suffered a prior serious or violent felony conviction within the meaning of 667, subdivision (a)(1), as well as the “Three Strikes” law (§ 667, subd. (b)-(j), § 1170.12, subd. (a)-(d)), and that he had served one prior prison term within the meaning of section 667.5, subdivision (b).
A jury found [Petitioner] guilty of attempted murder as charged, found that the attempted murder was willful, deliberate and premeditated, and found true the deadly weapon and great bodily injury allegations. A court trial on the prior conviction was bifurcated.
After the verdict, the trial court granted [Petitioner's] request to represent himself. The matter was then continued for 30 days, at which time a court trial on the prior conviction was held. The court found true the prior conviction allegations, denied [Petitioner's] motion for new trial, and denied [Petitioner's] motion to strike the prior conviction. [¶¶]

         Prosecution Evidence

         On May 22, 2016, Pomona Police Officers Megan Gonzalez and Zane Holmes observed Whitaker and another man in conversation near a liquor store. The officers then saw [Petitioner] riding a bicycle very fast toward the two men. As [Petitioner] reached the men, he stood and angled his body backward, causing the bicycle to be propelled forward from under him, striking Whitaker. Officer Gonzalez saw Whitaker place his empty hands in the air and retreat a step away from [Petitioner]. A recording from the patrol car's cameras were played for [the] jury, with narration provided by the two officers. As Whitaker backed up, [Petitioner] quickly stepped toward him, then threw several punches which landed on Whitaker's face. Whitaker held his hands up as if to protect himself, palms extended outward. Neither officer saw Whitaker attempt to hit [Petitioner] or hold anything in his hands, but they lost sight of the men momentarily after the two fell to the ground. [Petitioner] was then observed on top of Whitaker, who was moving his arms as though he were trying to protect himself. Officer Gonzalez made a U-turn, lost sight of the men for a half second, and then saw both men get up and separate. Both men were yelling at each other as [Petitioner] walked toward his bicycle.

         The officers approached and ordered both men to the ground with hands in sight. [Petitioner] appeared agitated and irate. Both men's hands were empty, but a bloodied knife with a six-inch blade was later found in a nearby planter. Whitaker was bleeding from a laceration near his mouth. There were no visible injuries on [Petitioner]. When Whitaker began bleeding profusely from a neck wound, Officer Gonzalez applied pressure with her hands until paramedics arrived and transported him to the hospital. Whitaker was treated for stab wounds and underwent surgery to tie off his internal jugular vein, which was severely injured.

         Defense evidence

         [Petitioner], the sole defense witness, testified that he had been convicted of robbery with a firearm in 2002, possession of a firearm by a felon in 2010, and misdemeanor battery on a police officer in 2016. [Petitioner] testified that he had known Whitaker for some years before the incident, and that he had a reputation as a man who liked to “smack” women around and who used drugs. [Petitioner] admitted he was depicted on the video throwing his bicycle at Whitaker and then punching him. [Petitioner] claimed that about 20 minutes earlier, he had confronted Whitaker about a block from the liquor store and demanded the $5 owed to him. [Petitioner] explained that he had sold Whitaker some drugs, had given him money for food, for a total of $10, and Whitaker had repaid only $5 earlier that day. Two other acquaintances of [Petitioner], Robert Lee and Amanda were present at the first contact. As [Petitioner] was talking to them, Whitaker “blindsided” [Petitioner], attacked him from the side, said, “I got your $5.00 right here, ” and then stabbed [Petitioner] in the chest and on the back, while yelling and screaming. Whitaker held the knife cupped in his hand, behind his pant leg. [Petitioner] fell to the ground and tried to pepper spray Whitaker, but without effect. As [Petitioner] picked up the drugs that fell from his hand and tried to get his ...

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