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Ahmed v. Madden

United States District Court, S.D. California

September 9, 2019

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

          ORDER: (1) GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; [DOC. NO. 8] (2) ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE; AND [DOC. NO. 10] (3) DENYING CERTIFICATE OF APPEALABILITY

          MARILYN L. HUFF, DISTRICT JUDGE

         On October 1, 2018, Mahad Ahmed (“Petitioner”), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On February 22, 2019, Respondent filed a motion to dismiss Petitioner's habeas petition as untimely under AEDPA's one-year statute of limitations, 28 U.S.C. § 2244(d). (Doc. No. 8.)

         On June 25, 2019, the magistrate judge issued a report and recommendation, recommending that the Court grant the motion to dismiss and dismiss Petitioner's habeas petition with prejudice as untimely under AEDPA's one-year statute of limitations. (Doc. No. 10.) Petitioner did not file an opposition to Respondent's motion to dismiss, nor did Petitioner file objections to the magistrate judge's report and recommendation. For the reasons below, the Court adopts the magistrate judge's report and recommendation and grants Respondent's motion to dismiss with prejudice.

         Background

          On May 15, 2015, a jury convicted Petitioner of murder in the second degree in violation of Cal. Penal Code § 187(a) and assault by means likely to produce great bodily injury in violation of Cal. Penal Code § 245(a)(4). (Doc. No. 9-1 at 2; see also Doc No. 9-5 at 1.) The jury found true allegations that Petitioner personally inflicted great bodily injury, and inflicted great bodily injury causing a coma due to brain injury under 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. (Doc. No. 9-1.) On December 23, 2016, the Court of Appeal affirmed the judgment in a reasoned opinion. (Id. at 2-35.) It first held that the evidence was sufficient to support Petitioner's conviction for second degree murder under People v. Cravens, 267 P.3d 1113 (Cal. 2012). (Doc. No. 9-1 at 11-18.) Second, the Court of Appeal held that the trial court properly admitted evidence of three prior acts under California Evidence Code § 352. The Court of Appeal ruled that “these acts were not only relevant to the elements of implied malice for purposes of second degree murder, but also to refute other matters in issue, ” such as Petitioner's claim that “he simply unthinkingly reacted in defense of his group, ” Petitioner's testimony that “he did not know that [victim] could fall backwards as a result of his punch, ” and “to counter [Petitioner's] testimony that he did not intend for [victim] to be seriously injured.” (Id. at 22.) Third, the Court of Appeal held that the trial court properly instructed the jury on the elements of implied malice, observing that the California Supreme Court approved of “virtually identical” jury instructions in People v. Nieto Benitez, 840 P.2d 969 (Cal. 1992). (Id. at 29-30.)

         Finally, the Court of Appeal rejected Petitioner's claim that the jury instructions were unconstitutionally vague. The Court of Appeal observed that the California Supreme Court had repeatedly approved of the instruction and had characterized similar jury language as “straightforward.” Nieto Benitez, 840 P.2d at 981; People v. Knoller, 158 P.3d 731, 739 (Cal. 2007). As for the implied malice standard, the Court of Appeal cited Johnson v. United States, 135 S.Ct. 2551, 2557-58, 2561 (2015), where the United States Supreme expressly stated that it does “not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk' to real-world conduct.” (Doc. No. 9-1 at 30-35.) Accordingly, the Court of Appeal affirmed the judgment and held that Petitioner's claims were without merit. (Id.)

         On January 20, 2017, Petitioner filed a petition for review with the California Supreme Court. (Doc. No. 9-2.) The California Supreme Court summarily denied the petition for review on March 1, 2017. (Doc. No. 9-3.)

         On February 21, 2018, Petitioner, proceeding pro se, constructively filed a petition for writ of habeas corpus in San Diego Superior Court. (See Doc. No. 9-4 at 13-14.) On April 5, 2018, the Superior Court denied the petition on the merits. (Doc. 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 as contained in his Superior Court petition. (Doc. 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. (Doc. 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.) Ruling in the alternative, the Court of Appeal held that Petitioner “has not established any prejudice from trial counsel's failure to make a peremptory challenge to the trial judge, ” nor did Petitioner show prejudice from counsel's failure to challenge the denial of his mistrial motion, which had been made on grounds of judge bias. (Doc. No. 9-7 at 2-3.) According to the court, Petitioner “fails to cite a single instance of [the trial judge's] conduct which would support an inference of partiality” and the Court of Appeal “reviewed the trial judge's rulings on the admissibility of the evidence of Petitioner's prior bad acts” and the “rulings themselves thus do not suggest judicial bias.” (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. (Doc. No. 9-8.) The California Supreme Court summarily denied the petition on September 12, 2018. (Doc. 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.[1] (Doc. No. 1.) 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; (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.)

         Discussion

         I. ...


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