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Ahmed v. Madden

United States District Court, S.D. California

June 25, 2019

MAHAD AHMED, Petitioner,
v.
RAYMOND MADDEN, Warden, Respondent.

          REPORT AND RECOMMENDATION RE: RESPONDENT'S MOTION TO DISMISS [ECF NO. 8]

          Hon. Jill L. Burkhardt, United States Magistrate Judge.

         This Report and Recommendation is submitted to United States District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

         I. INTRODUCTION

         Petitioner Mahad Ahmed (“Petitioner”), a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court jury conviction for murder in the second degree and assault by means likely to produce great bodily injury. (ECF No. 1.) Now before the Court is Respondent's motion to dismiss the Petition. (ECF No. 8.) Respondent contends that the Petition should be dismissed with prejudice as untimely and, alternatively, should be dismissed without prejudice due to Petitioner's failure to exhaust his state court remedies as to one of his seven claims. (Id.) The Court has reviewed the Petition, the motion to dismiss, and the lodgments. For the reasons discussed below, the Court RECOMMENDS that the motion to dismiss be GRANTED.

         II. BACKGROUND

         On June 14, 2014, Petitioner and a group of friends were walking in the Gaslamp area of downtown San Diego. (ECF No. 9-1 at 3-4.) The group came across brothers Michael and Phillip Beaver and their friend Dan Devito. (Id.) Petitioner and his group approached the Beavers and Devito. (Id.) After Michael Beaver engaged with members of Petitioner's group, Petitioner punched Michael Beaver in the head causing him to fly backwards and hit his head on a metal railing. (Id. at 4-5, 8.) Petitioner and his friends left, and Michael Beaver was taken to the hospital by ambulance where he was pronounced dead. (Id. at 5-6, 8.)

         Petitioner was arrested on June 15, 2014. (Id. at 6.) At trial, the People of the State of California (“the People”) proceeded on a second degree murder theory that Petitioner acted with implied malice. (Id.) The People presented evidence that Michael Beaver's death was caused by blunt force injury to the head and introduced evidence of three uncharged acts of violence involving Petitioner. (Id. at 6-9.) Petitioner denied ever being in a fight in which he had seriously injured anyone. (Id. at 8.)

         On May 15, 2015, a jury convicted Petitioner of murder in the second degree (Cal. Penal Code § 187(a)) and assault by means likely to produce great bodily injury (Cal. Penal Code § 245(a)(4)). (Id. at 2; see also ECF No. 9-5 at 1.) As to the assault, the jury found true allegations that Petitioner personally inflicted great bodily injury, and inflicted great bodily injury causing a coma due to brain injury (Cal. Penal Code § 12022.7(a), (b)). (Id.) The trial court sentenced Petitioner to 15 years to life for the murder and stayed execution of a four-year upper term for the assault and also stayed five- and three-year enhancements for the Section 12022.7(a) and (b) allegations. (Id.)

         Petitioner appealed the judgment to the California Court of Appeal. (Id.) In his appeal, Petitioner raised the following grounds for reversal: (1) the trial court prejudicially erred by instructing the jury with CALCRIM No. 520 on implied malice without stating that implied malice requires that the act causing death be one that has a high degree of probability it would result in death; (2) the deficiency in the implied malice jury instruction makes the implied malice standard void for vagueness as applied to him in violation of his Fifth and Fourteenth Amendment rights to due process; (3) the trial court erred by admitting uncharged acts to show his conduct in the present case was dangerous to human life; and (4) the evidence is insufficient to prove his acts were sufficiently dangerous to constitute implied malice. (Id.) On December 23, 2016, the Court of Appeal affirmed the judgment in a reasoned opinion. (Id. at 2-35.)

         On January 20, 2017, Petitioner filed a petition for review with the California Supreme Court. (ECF No. 9-2.) Petitioner raised the same grounds for relief that he raised before the Court of Appeal. (Id. at 7-8.) On March 1, 2017, the California Supreme Court summarily denied the petition for review. (ECF No. 9-3.)

         On February 21, 2018, Petitioner, proceeding pro se, constructively[1] filed a petition for writ of habeas corpus in San Diego Superior Court. (See ECF No. 9-4 at 13-14.) In his petition, Petitioner asserted the following grounds for relief: (1) ineffective assistance of trial counsel for failing to submit a peremptory challenge to the assigned trial judge on a good faith belief of prejudice; (2) ineffective assistance of trial counsel for failing to file a writ of mandate/prohibition before the Court of Appeal challenging the trial judge's denial of a request for mistrial; and (3) ineffective assistance of appellate counsel for failing to raise trial counsel's ineffective assistance with regard to her failure to file a writ of mandate/prohibition. (Id. at 3-11.) On April 5, 2018, the Superior Court denied the petition on the merits. (ECF No. 9-5.)

         On April 16, 2018, Petitioner, proceeding pro se, constructively filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same grounds for relief contained in his Superior Court petition. (ECF No. 9-6.) The Court of Appeal denied the petition on April 27, 2018, reasoning that Petitioner was not entitled to habeas corpus relief because he had filed his petition “more than two years after he was sentenced and 16 months after the judgment was affirmed on appeal without any explanation for the delay, ” and therefore the petition was barred as untimely. (ECF No. 9-7 at 2.) The Court of Appeal added that “[e]ven if the petition were not procedurally barred, it would be denied for failure to state a prima facie claim for relief.” (Id.)

         On May 11, 2018, Petitioner, proceeding pro se, constructively filed a petition for writ of habeas corpus in the California Supreme Court, raising the same grounds for relief stated in his prior habeas petitions. (ECF No. 9-8.) The California Supreme Court summarily denied the petition on September 12, 2018. (ECF No. 9-9.)

         On October 1, 2018, Petitioner, proceeding pro se, constructively filed his Petition pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1 at 19-21.) In the Petition, Petitioner raises the following seven grounds for relief: (1) ineffective assistance of trial counsel for failing to object to the use of jury instruction CALCRIM No. 520; (2) instructing the jury with CALCRIM No. 520 on implied malice without stating that implied malice requires that the act causing death be one that has a high degree of probability it would result in death in violation of Petitioner's due process rights under the Fifth and Fourteenth Amendments; (3) introducing uncharged acts to show Petitioner's conduct in the present case was dangerous to human life in violation of Petitioner's due process rights and right to a fair trial; (4) insufficient evidence to support Petitioner's conviction of second degree murder; (5) ineffective assistance of trial counsel for failing to peremptorily challenge the trial judge; (6) ineffective assistance of trial counsel for failing to file a writ of mandate/prohibition before the Court of Appeal challenging the trial judge's denial of a request for mistrial; and (7) ineffective assistance of appellate counsel for failing to raise trial counsel's ineffective assistance with regard to her failure to file a writ of mandate/prohibition. (Id.)

         On February 22, 2019, Respondent filed a motion to dismiss the Petition and a notice of lodgment. (ECF Nos. 8, 9.) Petitioner's opposition to the motion was due March 28, 2019, but no opposition was filed. (See ECF No. 5 at ¶ 3.)

         III. ...


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