Jones v. Montgomery

RYAN JONES, Petitioner, v. WARREN L. MONTGOMERY, Warden, et al. Respondents.

No. 18cv2173 LAB (DEB)

United States District Court, S.D. California

August 20, 2021

ORDER: (1) DENYING AMENDED PETITION FOR A WRIT OF HABEAS CORPUS; (2) DENYING PETITIONER'S REQUEST FOR DISCOVERY AND/OR OTHER EVIDENTIARY DEVELOPMENT; (3) DENYING PETITIONER'S REQUEST FOR APPOINTMENT OF COUNSEL; AND (4) DENYING A CERTIFICATE OF APPEALBILITY

Larry Alan Burns Chief United States District Judge

Ryan Jones (“Petitioner”) is a state prisoner proceeding pro se and IFP with an Amended Petition for a Writ of Habeas Corpus (“Amended Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 27.) Petitioner challenges his 2016 San Diego County Superior Court convictions in case number SCD 262580 of two counts of attempted voluntary manslaughter with infliction of great bodily injury on the victims and use of a deadly and dangerous weapon, a knife, in the commission of the offenses, two counts of assault with a deadly weapon on a firefighter with infliction of great bodily injury on the victims and use of a deadly and dangerous weapon in the commission of the offenses and two counts of battery, for which he was sentenced to 23 years and 8 months in prison. (Clerk's Tr. [“CT”] at 767-68 [ECF No. 38, Lodgment No. 20].)

In the Amended Petition, Petitioner claims his federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated due to: (1) trial court error in admitting propensity evidence, (2) trial court error in the admission of photographs into evidence, (3) juror bias, (4) judicial bias, (5) the prosecutor presenting false and perjured testimony, (6) ineffective assistance of trial counsel, (7) instructional error in self-defense instructions, (8) insufficient evidence supporting his convictions because the prosecution failed to show Petitioner did not act in self-defense, (9) cumulative error and (10) instructional error in defining a firefighter's duty. (See ECF No. 27 at 6-94.) Petitioner requests appointment of counsel with subpoena power to develop his claims, primarily his juror bias claim (Claim 3), and includes a list of questions for the juror. (Id. at 22, 24-25.)

Respondent has filed an Answer and has lodged the relevant state court record. (ECF Nos. 37-38.) Respondent maintains habeas relief is unavailable and Petitioner isn't entitled to an evidentiary hearing on his claims because: (1) Claims 3 through 6 are procedurally defaulted, (2) Claim 9 is unexhausted and (3) in any event, the state court adjudication of each of Petitioner's claims on the merits is neither contrary to or an unreasonable application of clearly established federal law nor based on an unreasonable determination of the facts. (ECF No. 37 at 2.) Petitioner has filed a Traverse which addresses procedural default exhaustion, and the merits as well as reasserts his request for appointment of counsel and evidentiary development. (ECF No. 44 at 1-13.) The Traverse also includes an attached motion for discovery, a request for appointment of counsel and subpoena power to expand the record and develop his claims, particularly Claim 3, and a list of questions for Juror # 10, the trial judge and trial counsel. (Id. at 14-36.)

I. RELEVANT PROCEDURAL HISTORY

After a jury trial, Petitioner was convicted of two counts of attempted voluntary manslaughter of a firefighter in violation of Cal. Penal Code §§ 664 and 192 (lesser included offenses of the two charged crimes of attempted murder of a firefighter, see CT 22, of which the jury found Petitioner not guilty, see CT 820-22 825-26), with additional findings as to each count Petitioner inflicted great bodily injury on the victims in violation of Cal. Penal Code §§ 12022.7(a) and 1192.7(c)(8) and used a deadly and dangerous weapon, a knife, in the commission of the offenses, within the meaning of Cal. Penal Code §§ 12022(b)(1) and 1192.7(c)(23), two counts of assault with a deadly weapon on a firefighter in violation of Cal. Penal Code §245(c), with additional findings as to both counts Petitioner inflicted great bodily injury on the victims in violation of Cal. Penal Code §§ 12022.7(a) and 1192.7(c)(8) and used a deadly and dangerous weapon, a knife, in the commission of the offenses within the meaning of Cal. Penal Code § 1192.7(c)(23), and two counts of battery in violation of Cal. Penal Code § 242. (CT 820, 823-24, 827-28, 829-30, 835-36, 841-42.) Petitioner admitted he was previously convicted of a felony, a 2002 Merced County, California robbery conviction pursuant to Cal. Penal Code § 211, which was a serious felony prior pursuant to Cal. Penal Code §§ 667(a)(1), 668, and 1192.7(c), a strike prior pursuant to Cal. Penal Code §§ 667(b) through (i), 1170.12 and 668, and a probation denial prior pursuant to Cal. Penal Code § 1203(e)(4). (CT 820.) Petitioner was sentenced to 23 years 8 months in prison. (CT 767-68.)

On direct appeal to the state appellate court, Petitioner raised six claims for relief, asserting Claims 1-2 and 7-10 here. (ECF No. 38-2, Lodgment No. 2.) On July 20, 2017, the California Court of Appeal affirmed the judgment in a reasoned opinion. (ECF No. 38-1, Lodgment No. 1.) Petitioner thereafter filed a petition for review in the California Supreme Court, which was denied in an October 25, 2017 order stating in full: “The petition for review is denied.” (ECF Nos. 38-4, 38-5, Lodgment Nos. 4-5.) On March 5, 2018, Petitioner filed a habeas petition in the California Court of Appeal requesting early parole consideration and recalculation of custody credits, which on March 8, 2018, the state appellate court denied. (ECF Nos. 38-6, 38-7, Lodgment Nos. 6-7.)

On September 19, 2018, Petitioner filed a federal Petition, which on September 28, 2018, the Court dismissed for failure to satisfy the filing fee requirement and with a notice of options for failure to exhaust state court remedies. (ECF Nos. 1-2.) After granting Petitioner's requests to proceed in forma pauperis and for an extension of time to choose one of the options outlined and file a response (see ECF No. 11), on July 11, 2019 and August 6, 2019, Petitioner filed motions for withdrawal and abeyance. (ECF Nos. 12, 14.) After briefing and the Magistrate Judge's issuance of a Report and Recommendation (“R&R”) to grant Petitioner's unopposed motions for withdrawal and abeyance (see ECF Nos. 16-17), on February 10, 2020, the Court issued an order adopting the R&R, granting the unopposed motions for withdrawal and abeyance, dismissing the unexhausted claims (Claims 3-6) and staying the remainder of the federal Petition. (ECF No. 18.)

In October 2019, Petitioner filed three sets of filings in the state superior court (see ECF Nos. 38-8 through 3-12, Lodgment Nos. 8-10), which that court construed together as a second state habeas petition raising six grounds for relief, Claims 1-6 here. (See ECF No. 38-13, Lodgment No. 11.) On January 6, 2020, the state superior court denied the petition, finding Claims 1 and 2 procedurally barred because they were previously raised and rejected on appeal, Claims 3-5 procedurally barred due to substantial delay, and concluding all six claims failed to state a prima facie case for relief. (Id.) On December 27, 2019, Petitioner filed a third habeas petition in the state superior court (ECF No. 38-15, 38-16, Lodgment No. 13), which on January 28, 2020, the superior court denied on the same grounds as the second petition, noting it appeared to be a photocopy of the second petition. (ECF Nos. 38-14, 38-17, Lodgment Nos. 12, 14.)^[1]

On April 7, 2020, Petitioner filed a habeas petition in the California Court of Appeal, raising Claims 1-6. (See ECF No. 38-18, Lodgment No. 15.) In an order dated April 10, 2020, the state appellate court denied the petition, finding the petition barred as untimely, concluding several claims were additionally barred pursuant to other state procedural bars or for failure to state a prima facie case for relief, discussed in greater detail with respect to Claims 3-6 below, and stating: “Where, as here, the claims are procedurally barred or fail to state a prima facie case for relief, the court will summarily deny the petition.” (ECF No. 38-19 at 2, Lodgment No. 16.) (citations omitted.)

On April 13, 2020, Petitioner filed a petition in the California Supreme Court, raising Claims 3-6. (ECF No. 38-20, Lodgment No. 17.) On July 8, 2020, the California Supreme Court denied the petition in an order that stated in full: “The petition for review is denied.” (ECF No. 38-21, Lodgment No. 18.)

On September 3, 2020, Petitioner filed a Petition to Proceed with Federal Review (ECF No. 26) and an Amended Petition (ECF No. 27), the latter of which is the operative petition in the instant federal action. On September 28, 2020, the Court issued an order lifting the stay and setting a briefing schedule. (ECF No. 30.) On January 14, 2021, Respondent filed an Answer and lodged the state court record (ECF Nos. 37-38) and on February 16, 2021, Petitioner filed a Traverse. (ECF No. 44.)

II. FACTUAL BACKGROUND

The following facts are taken from the state appellate court opinion affirming Petitioner's judgment in People v. Jones, D070280 (Cal.Ct.App. July 20, 2017). (See ECF No. 38, Lodgment No. 1.) The state court factual findings are presumptively reasonable and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

On an afternoon in June 2015, transit system security guard Matthew Martin was working at a trolley station in downtown San Diego. Martin saw Thomas S. who appeared to be intoxicated. After Thomas stumbled and fell, Martin helped him up and onto a cement bench. Thomas stood up and then fell against the bench. Martin had difficulty controlling Thomas

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