United States District Court, C.D. California
FINAL REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
PATRICK J. WALSH, UNITED STATES MAGISTRATE JUDGE
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]
I.
SUMMARY OF PROCEEDINGS
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.)
II.
STATEMENT
OF FACTS
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 ...