United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se in this habeas corpus
action filed pursuant to 28 U.S.C. § 2254. Respondent
has answered the first amended habeas petition, ECF No. 18,
and petitioner has filed a traverse. ECF Nos. 27-28. Upon
careful consideration of the record and the applicable law,
the undersigned recommends that the petition be denied for
the reasons explained below.
Factual and Procedural Background
a jury trial in the Nevada County Superior Court, petitioner
was convicted of attempted murder and assault with a deadly
weapon. Petitioner was sentenced to 28 years to life in
prison based on the jury’s findings that he had two
prior serious or violent felony convictions. The California
Court of Appeal affirmed petitioner’s convictions on
May 26, 2015. State Lodged Document No. 10 (direct appeal
opinion). Petitioner did not file any state habeas corpus
petitions before filing the present § 2254 action in
affirming the judgment on appeal, the California Court of
Appeal, Third Appellate District, summarized the facts as
Petitioner worked as a produce clerk and bagger for a
grocery store in July 2012. The grocery store issued him a
box cutter in connection with his duties.
On July 15, 2012, the grocery store suspended petitioner due
to an incident in the store. Later that day, petitioner saw
an acquaintance named Joshua Kelgard at a shopping center.
The two spoke cordially for a few minutes, but Kelgard was
uncomfortable because he was a protected party in a
restraining order against defendant. Kelgard’s ex-wife,
who was involved in a relationship with petitioner’s
brother at the time, had filed for the restraining order
three to four years earlier. Petitioner and Kelgard ended
their conversation, shook hands, and parted ways.
Kelgard met his friend Ashley Nachand and they walked to get
something to eat. As Kelgard and Nachand stood next to each
other at a deli counter, petitioner approached them from
behind, stepped between them, put his hand on Kelgard’s
left shoulder, and used a sharp instrument to strike him in
the chest and face. Kelgard ran away from petitioner and
petitioner fled the grocery store.
The treating physician testified that Kelgard suffered a
circular stab wound to his chest and a laceration to his
face. The chest wound had clean margins and no bruising. The
wound had characteristics of a penetrating injury from a
sharp object. The face wound was linear with no oozing.
Either wound could have been life-threatening if it had
penetrated deeper into the body. The injuries were not
consistent with being punched, and it was unlikely that the
injuries were caused by keys or a credit card. No. stabbing
instrument was ever recovered.
That evening, police officers found petitioner hiding
underneath his stepfather’s deck and arrested him.
Petitioner spontaneously stated, “I did not stab
Against the advice of counsel, petitioner testified that he
did not remember going to the grocery store on the day of the
incident or trying to stab Kelgard. Petitioner said he liked
Kelgard and had no intention of killing him. Petitioner
denied carrying a box cutter.
Petitioner said that at the time of the stabbing he was
paranoid and believed that his parents were poisoning his
food. He said he observed unplugged electrical devices
turning on in his presence, experienced a high-pitched
ringing in his ears that may have been caused by sensitivity
to electricity, noticed the presence of ‘condensed
energy’ in his neighborhood, perceived people acting in
a threatening manner towards him, and perceived that people
in the community were communicating in code. Petitioner
deciphered the code by assigning numerical values to letters
of the alphabet. Petitioner thought Kelgard and his friends
may have been threatening him because they had put the
restraining order on him.
During closing argument, the prosecutor stated: ‘I
talked briefly in the beginning about concept [sic] of
reasonable doubt, as well as the judge’s instructions,
boiled down is reasonable equals reason. Again, it does not
mean beyond all doubt, it’s a doubt with a reason you
can attach to it. It’s a reason you can explain to your
fellow jurors and you can all agree on.’ Defense
counsel did not object.
Then, during defense counsel’s closing argument,
defense counsel addressed the absence of a weapon: ‘I
think we can take a look at the evidence and look at it
really closely and you will find there wasn’t much in
the way of a weapon there; that it probably, in fact, was the
box cutter that I held up. That there was a big knife there,
no one found a knife, no one saw a knife, no one testified
that they saw him throw a knife away, anything like that.
[¶] Officers looked around his house, they looked in the
vicinity, they said they looked in the bushes, no one found a
sharp-edge weapon or anything like that. [¶] I simply
can’t believe that my client was attempting to kill Mr.
In his closing summation, the prosecutor responded:
‘The next thing [defense counsel] also decided to talk
about was box cutters, not much of a weapon. [¶] Do you
remember 9-11? Box cutters were on that plane and yet the
whole plane of people did not stop there [sic]. [¶]
… I want you to look at the photos of the [location]
where the blood trail leads out and the trail of blood at the
very end. You have to ask yourself, at that point, is it not