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Grant v. Hill

United States District Court, S.D. California

October 24, 2019

WILLIE ULYSSES GRANT Petitioner,
v.
RICK HILL, Warden, et al. Respondents.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING PETITIONER'S UNOPPOSED MOTION FOR STAY AND ABEYANCE PENDING STATE COURT EXHAUSTION [ECF NO. 53]

          LINDA LOPEZ UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge John A. Houston pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On September 9, 2019, Petitioner, by and through his counsel, filed a motion requesting that the Court stay and abey federal proceedings while Petitioner exhausts two new claims of his amended Petition for Writ of Habeas Corpus in the California Supreme Court, or alternatively, to find that Petitioner's two claims are technically exhausted and excuse any procedural bar. ECF No. 54. Respondent did not file an opposition. See Docket. The Court has considered the motion to stay and abey and the record as a whole. For the reasons discussed below, the Court RECOMMENDS that the motion for stay and abeyance be GRANTED and the alternative request to find that Petitioner's two new claims are technically exhausted be DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 14, 2006, a jury convicted Petitioner of first degree murder with personal use of a firearm. ECF No. 1 at 1-2. Petitioner was sentenced to fifty years to life in state prison, which included twenty-five years to life for the murder, plus an additional consecutive twenty-five years to life for the firearm enhancement. ECF Nos. 1-3 at 137; 51-29 at 14-15. Petitioner filed an appeal in which he argued the following: (1) the verdict of murder was based on the uncorroborated testimony of an accomplice; (2) the trial court erred by failing to instruct the jury that the chief witness against him was an accomplice; (3) the trial court erroneously excluded certain jury instructions; (4) the trial court, by instructing the jury on both felony murder and conspiracy, caused confusion; (5) the trial court erred by failing to sua sponte instruct the jury of the lesser included offense of involuntary manslaughter; (6) there was no substantial evidence to support the jury's finding that Petitioner personally used a firearm in committing the offense; (7) the trial court erroneously excluded as hearsay an exculpatory statement Petitioner made to the police; (8) the trial court erroneously admitted as evidence ammunition found in Petitioner's apartment; and; (9) the effect of these cumulative errors denied Petitioner his constitutional right to a fair trial. ECF No. 8-3 at 2. The California Court of Appeal affirmed the trial court's judgment on September 16, 2008. Id. at 1.

         Petitioner filed a petition for review in the California Supreme Court, which was denied on December 10, 2008. ECF No. 8-4.

         On March 17, 2009, Petitioner filed a petition for writ of certiorari in the United States Supreme Court alleging (1) there was insufficient evidence to support the jury's finding that Petitioner used a firearm and (2) the evidence was insufficient as a matter of law to support the guilty conviction because the testimony of an accomplice was not sufficiently corroborated as required by the due process clause of the United States Constitution. ECF No. 8-5 at 1, 9-11. The Supreme Court denied the petition on October 5, 2009. ECF No. 8-6.

         On September 25, 2010, Petitioner constructively filed[1] a petition for writ of habeas corpus in the San Diego County Superior Court, in which he alleged (1) the trial court erred by permitting certain expert testimony; (2) his Sixth Amendment right to a speedy trial was violated; (3) the admission of a statement of a non-testifying co-defendant violated the Sixth Amendment Confrontation Clause; (4) he received ineffective assistance of counsel when his attorney failed to make certain objections during trial; (5) he received ineffective assistance of counsel for failure to investigate; (6) there was prosecutorial misconduct when the prosecutor misstated facts during trial and closing arguments; (7) there were search warrant errors; and (8) the arrest was unconstitutional. ECF Nos. 8-7 at 3-23; 8-8 at 2. On November 22, 2010, the San Diego County Superior Court denied the petition. ECF No. 8-8.

         On October 4, 2010, Petitioner constructively filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District, asserting the same claims raised in his previous state habeas corpus petition. ECF No. 8-9. On November 8, 2010, the Court of Appeal denied the petition without prejudice because Petitioner had not established that the superior court had ruled on his contentions in the first instance. ECF No. 8-10. On December 13, 2010, Petitioner filed a second petition for writ of habeas corpus with the California Court of Appeal, Fourth Appellate District, which was denied on January 11, 2011. ECF Nos. 8-11; 8-12.

         On January 20, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, asserting the same claims raised in his previous state petitions. ECF No. 8-13. On November 16, 2011, the California Supreme Court denied the petition. ECF No. 8-14.

         On December 19, 2011, Petitioner, proceeding pro se, constructively filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254 in this Court alleging the following grounds for relief:

(1) the trial court violated Petitioner's due process rights when it admitted and allowed the jury to consider flawed expert testimony [Ground One; ECF No. 1 at 6-9];
(2) the introduction of inadmissible ammunition evidence violated Petitioner's due process rights [Ground Two; ECF No. 1 at 10-13];
(3) the trial court violated Petitioner's due process and Sixth Amendment rights to notice of the charges against him and allowed the jury to convict based on insufficient evidence by instructing the jury on conspiracy [Ground 3; ECF No. 1 at 14-16];
(4) the trial court violated Petitioner's due process rights when it failed to instruct the jury on involuntary manslaughter [Ground 4; ECF No. 1 at 17-18];
(5) the trial court violated Petitioner's due process rights when it failed to instruct the jury that the chief witness against him was an accomplice as a matter of law, resulting in a conviction that was unlawfully based on uncorroborated testimony of an accomplice [Ground Five; ECF No. 1 at 19-20];
(6) there was insufficient evidence to sustain the jury's finding that Petitioner personally used a firearm in violation of his due process rights [Ground Six; ECF No. 1 at 21-24];
(7) Petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to object to the admission of the ammunition evidence and call an ammunition expert [Ground Seven; ECF No. 1 at 25-26];
(8) Petitioner's due process rights were violated when the prosecutor misstated the evidence during trial and closing arguments; [Ground Eight; ECF No. 1 at 27-28];
(9) Petitioner's Confrontation Clause rights were violated when non-testifying co-defendant's admissions were admitted [Ground Nine; ECF No. 1 at 29-32];
(10) the cumulative errors at trial denied Petitioner his due process rights [Ground 10; ECF No. 1 at 33];
(11) the trial court violated Petitioner's due process rights, including his right to present a complete defense, when it excluded Petitioner's statement and demeanor at the time ...

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