DAVID O. CARTER, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") and all of the records herein, including the October 26, 2011 Report and Recommendation of United States Magistrate Judge which addresses Grounds One and Three of the Petition (Docket No. 45) ("Merits R&R"), the January 11, 2010 Order Denying Petitioner's Motion to Stay (Docket No. 16) (alternatively, "Stay R&R") which the Court has construed to be a report and recommendation of United States Magistrate Judge in accordance with
As detailed below, the Court concurs with and accepts the Magistrate Judge's findings and conclusions in the Merits R&R and the Stay R&R, denies the Motion to Stay, and overrules the parties' objections to the extent they are inconsistent with this Order. Further, and alternative to its concurrence with and acceptance of the Stay R&R, and assuming the case would have progressed differently had the Motion to Stay been granted and had petitioner's unadjudicated claims been considered on the merits, the Court denies such claims on the merits. Finally, the Court denies the Petition and dismisses this action with prejudice.
On December 28, 2007, petitioner Pablo Bastidas, a state prisoner who then was proceeding with the assistance of counsel, filed the Petition and a separate memorandum ("Petition Memo"). Petitioner challenged his 2002 conviction and sentence in Los Angeles County Superior Court Case No. BA240229 following a jury trial. The Petition originally asserted four claims for relief: (1) petitioner was denied his Sixth Amendment right to counsel because his trial attorney failed to investigate and present an alibi defense (Ground One); (2) petitioner was sentenced by the court to an upper term without aggravating factors being considered by the jury in violation of
On January 4, 2008, the Magistrate Judge ordered the parties to brief whether the Petition was barred by the statute of limitations. (Docket No. 4). The parties briefed the timeliness issue and lodged multiple documents in support thereof. (Docket Nos. 6-10).
On October 2, 2008, petitioner's counsel moved to withdraw as counsel of record. (Docket No. 11). On November 12, 2008, the Magistrate Judge granted counsel's motion to withdraw. (Docket No. 14).
On July 29, 2009, petitioner filed the Motion to Stay (Docket No. 15), seeking to stay and abey this action pending his exhaustion of an additional claim in the California courts, i.e., a claim that his constitutional rights were violated when the trial court erroneously "placed unadjudicated weapon enhancements consecutive to petitioner[`]s accusatory charge after conviction of only the charged offense [California] Penal Code [section] 667(a)(1) enhancement" (the "new claim").
On January 11, 2010, the Magistrate Judge also issued an order directing further briefing, requiring respondent to file an answer addressing the merits of the Petition. (Docket No. 17). On March 10, 2010, respondent filed an application for leave to file a motion to dismiss and a motion to dismiss the Petition, arguing that Grounds Two and Four were unexhausted, and lodged multiple documents. (Docket Nos. 20, 22-23). On March 19, 2010, petitioner filed a "Notice of Withdrawal of Second and Fourth Claim[s] from Petition." (Docket No. 24). In light of petitioner's notice of withdrawal, on March 30, 2010, the Magistrate Judge denied respondent's application for leave to file a motion to dismiss and struck the motion to dismiss. (Docket No. 25).
On May 13, 2010, respondent filed an answer addressing the merits of the two remaining claims in the Petition (Grounds One and Three) and arguing that the Petition was time-barred. (Docket No. 32). Respondent lodged multiple documents in support of the answer including the Clerk's Transcript ("CT") and the Reporter's Transcript ("RT"). (Docket Nos. 33, 39).
On October 26, 2011, the Magistrate Judge issued the Merits R&R recommending that the then remaining grounds in the Petition — Grounds One and Three — be denied on the merits and that this action be dismissed with prejudice. (Docket No. 45). Because petitioner's claims failed on the merits, the Magistrate Judge declined to address whether the Petition was time-barred.
Petitioner appealed to the Ninth Circuit. (Docket No. 51). On July 1, 2015, the Ninth Circuit vacated the judgment and remanded the matter for further proceedings, finding that the Magistrate Judge lacked authority to issue the Order Denying Petitioner's Motion to Stay.
On August 6, 2015, the previously assigned District Judge referred the matter to the Magistrate Judge. (Docket No. 60). On August 14, 2015, the Magistrate Judge issued an order deeming the Order Denying Petitioner's Motion to Stay a report and recommendation and affording the parties an opportunity to file objections. (Docket No. 61). On September 3, 2015, respondent filed objections to the Order Denying Petitioner's Motion to Stay/the Stay R&R ("Respondent's Objections") and lodged multiple documents. (Docket Nos. 62-63). On September 3, 2015, petitioner filed objections with attachments ("Petitioner's Objections"). (Docket No. 64). On September 17, 2015, petitioner filed a response to Respondent's Objections with attachments ("Petitioner's Response"). (Docket No. 68). On November 16, 2015, respondent filed a reply to Petitioner's Objections ("Respondent's Reply"). (Docket No. 71). On April 18, 2017, petitioner filed a notice of supplemental authority. (Docket No. 72). The matter was thereafter reassigned to this Court. (Docket No. 73).
On August 23, 2002, after a joint trial with co-defendant Wilmer Alberto, a Los Angeles County Superior Court jury returned verdicts finding petitioner guilty of four counts of robbery, three counts of possession of a firearm by a felon, and one count of assault with a firearm. (CT 250-54, 256-58; RT 2407-13). The jury also found true multiple firearm enhancement allegations. (CT 250, 252-53, 256-57; RT 2407-13). The jury acquitted petitioner of attempted murder. (CT 255; RT 2413-14). The trial court sentenced petitioner to a total of 55 years in state prison. (CT 277-79; RT 2708).
Petitioner's retained counsel, William Bartz, filed a direct appeal in California Court of Appeal Case No. B163483, raising petitioner's claims presented as Grounds Three and Four herein. (CT 276; Lodged Docs. 11, 13). On December 17, 2003, counsel also filed a habeas petition ("First State Petition") in California Court of Appeal Case No. B171850, raising petitioner's claim presented as Ground One herein. (Lodged Doc. 14). On March 22, 2004, the Court of Appeal affirmed the judgment on direct appeal and denied the First State Petition in a single reasoned decision. (Lodged Doc. 3).
On May 3, 2004, petitioner, through counsel, filed a petition for review in California Supreme Court Case No. S124483, raising only Ground Three. (Lodged Doc. 4). On June 9, 2004, the California Supreme Court denied review. (Lodged Doc. 5).
On December 4, 2006, petitioner, through counsel, filed a state habeas petition ("Second State Petition") in California Supreme Court Case No. S148594, raising Ground One. (Lodged Doc. 6). On June 13, 2007, the California Supreme Court denied the Second State Petition without comment. (Lodged Doc. 7). On June 18, 2007, Bartz stopped representing petitioner. (Docket No. 8 at Ex. H (Bartz letter informing petitioner that petitioner had "one year from the date of the denial (June 13, 2007) to file in the federal district court")).
On July 26, 2009, petitioner, proceeding pro se, constructively filed a state habeas petition ("Third State Petition") in the Los Angeles County Superior Court, raising the new claim he sought to raise in these proceedings, i.e., that the trial court placed "unadjudicated" weapons enhancements after petitioner's conviction. (Lodged Doc. 16). On August 5, 2009, the Superior Court denied the Third State Petition on procedural grounds and on the merits. (Lodged Doc. 17). As to the merits, the Superior Court observed: "A review of the court file indicates that the enhancements were alleged in the Information. A review of the verdict forms indicates that the jury in fact deliberated and found the weapon enhancements true." (Lodged Doc. 17).
Meanwhile, as noted above, petitioner filed the instant Petition with this Court on December 28, 2007, and the Motion to Stay on July 29, 2009.
On or about August 24, 2009, petitioner filed a state habeas petition ("Fourth State Petition") in California Court of Appeal Case No. B218378, raising his new claim. (Lodged Doc. 18). On October 16, 2009, the Court of Appeal denied the Fourth State Petition on the merits, stating, "Our file reflects that petitioner was charged with the firearm enhancements, and the jury found the firearm enhancement allegations to be true." (Lodged Doc. 19).
On November 24, 2009, petitioner constructively filed a state habeas petition ("Fifth State Petition") in California Supreme Court Case No. S178439, raising his new claim. (Lodged Doc. 8). On May 20, 2010, the California Supreme Court summarily denied the Fifth State Petition with citations to
On December 1, 2014, petitioner, through counsel, filed a state habeas petition ("Sixth State Petition") in California Supreme Court Case No. S222837, raising claims asserted herein as Grounds Two and Four. (Lodged Docs. 26-27). On February 11, 2015, the California Supreme Court denied the Sixth State Petition with citations to
As noted above, the Ninth Circuit issued its decision on appeal in
The Court has conducted a de novo review of the portions of the Merits R&R and the Stay R&R to which the parties have objected, concurs with and accepts the Magistrate Judge's findings and conclusions therein, and overrules the parties' objections to the extent they are inconsistent with this Order. The Court does not further address the Merits R&R and objections thereto herein, but does specifically address the Stay R&R and objections thereto below and independently denies the Motion to Stay. Based on the Court's de novo review of the
As the Magistrate Judge explained, for petitioner to be entitled to a
The statute of limitations in petitioner's case began to run on September 8, 2004 — the day after petitioner's conviction became final.
Petitioner argues that he is entitled to equitable tolling for the time that he was represented by Bartz because Bartz allegedly "defrauded [], misled [], and abandoned him." (Petitioner's Response at 1-10; Docket No. 8 & exhibits thereto). As noted above, when Bartz stopped representing petitioner on June 18, 2007, Bartz informed petitioner that petitioner had until June 13, 2008 to file a federal habeas petition.
Given the Court's alternative disposition herein, the Court has assumed without deciding that equitable tolling would apply during the time that Bartz was representing petitioner (i.e., from prior to the limitations period until the California Supreme Court's June 13, 2007 denial of the Second State Petition (Lodged Doc. 7)), to render the Petition timely filed.
Assuming that the Petition was timely filed, petitioner may not use the relation back doctrine to avoid the limitations bar for the new claim. Petitioner argues that the new claim relates back to Ground Four which challenged the sufficiency of the evidence supporting the gun enhancement allegations.
Based on the Court's de novo review, petitioner's new claim was time-barred as of the filing of the Motion to Stay, and the Magistrate Judge's finding that a
In suggesting "good cause" for petitioner's failure to exhaust his new claim, counsel for petitioner appears to conflate the new claim with Ground Four of the Petition, stating:
(Petitioner's Objections at 8 (citing RT 1043-44, 1048, 1220)). The Motion to Stay did not seek to stay these proceedings to pursue petitioner's insufficiency of the evidence claim; rather, petitioner sought a stay based on the new claim he filed in the Third State Petition alleging that the trial court violated his constitutional rights by "plac[ing] unadjudicated weapon enhancements consecutive to petitioner[`]s accusatory charge after conviction of only the charged offense. . . ."
Because the Motion to Stay did not seek a stay of the proceedings for petitioner to exhaust his unexhausted claims contained in the Petition, i.e., Grounds Two and Four (
While there is "little authority" on what constitutes "good cause" for a petitioner's failure to exhaust for a
In contrast to
Under these circumstances, petitioner has given the Court nothing more than a "bald assertion" that there was good cause for failing to exhaust the new claim before he attempted to present it via the Motion to Stay.
Even if petitioner had shown "good cause" for a
Based on the Court's de novo review, the Court concludes that petitioner has not shown "good cause" for failure to exhaust his new claim, or that the new claim was potentially meritorious so as to merit a
In remanding this case, the Ninth Circuit instructed the Court to consider de novo whether the Motion to Stay should have been granted and, if so, to determine how the case may have progressed differently on the new claim if the stay had been granted.
In the new claim, petitioner alleges that the firearm enhancements that were used to increase his sentence were neither charged nor found true by a jury.
Petitioner's baseless and conclusory allegations do not warrant habeas relief.
In Ground Two, petitioner claims that he was sentenced to an upper term without aggravating factors being submitted to the jury in violation of
At sentencing, the trial court noted that it had read and considered the probation report and considered the following factors in aggravation: (1) "The crime involved great violence, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness"; (2) "The planning, sophistication, and professionalism with which the crime was carried out indicates premeditation"; (3) "The defendant has engaged in a pattern of violent conduct which indicates a serious danger to society"; (4) "The defendant's prior convictions as an adult or adjudications of commissions of crimes as a juvenile are numerous and of increasing seriousness"; and (5) "the crime involved multiple victims." (RT 2703-04). The court found no circumstances in mitigation. (RT 2704). The court then selected Count 7 (second degree robbery) as the principal term and imposed the upper term on that count. (RT 2703, 2705-06).
Petitioner contends that the upper term sentence on Count 7 violates
In
Since
Even if, however, none of the aggravating factors on which a judge relies in sentencing a defendant to an upper term sentence is established in a manner consistent with the Sixth Amendment, habeas relief would not be warranted if the error was harmless.
Although a court may not "consider new admissions made at sentencing in [a] harmless error inquiry," evidence presented at the sentencing proceeding may be considered "insofar as [it] would help . . . adduce what other evidence might have been produced at trial, had the question been properly before the jury."
Petitioner's sentencing claim fails because at least one of the aggravating factors on which petitioner's upper term sentence is predicated — the fact that the crime involved multiple victims and the fact that his prior convictions as an adult or adjudications of commissions of crimes as a juvenile were numerous and of increasing seriousness — withstands constitutional scrutiny.
First, the jury's verdicts specifically provided that petitioner's crimes involved multiple victims. The jury found petitioner guilty of robbery of Candelario Medina and of Richard Espinoza, and guilty of assault with a firearm and robbery of Julio Americo Balladares (incorrectly referred to in the verdict forms and Indictment as "Valladeres") as charged in Counts 1, 3, 4, 6, and 7 of the Indictment.
Given the jury's explicit findings, the trial court did not engage in any judicial fact-finding when it cited the "multiple victims" factor, and it could rely on this factor to impose an upper term sentence without running afoul of the Sixth Amendment.
Second, petitioner admitted that he previously had been convicted of a robbery on May 7, 1998, as charged. (RT 2415-17). Additionally, the trial court reviewed petitioner's probation report and observed, without comment or objection, that petitioner had "numerous" prior convictions as an aggravating factor. (RT 2703-04). The fact that a petitioner has numerous prior convictions need not be determined by a jury for imposition of an upper term sentence.
Even if the trial court cited to invalid aggravating circumstances to support the imposition of the upper term sentence, such error was harmless given that the court cited to at least one valid factor in imposing the upper term sentence.
Because the court relied on at least one valid factor in imposing the upper term sentence which is reflected in the jury verdicts, petitioner has shown no constitutional violation to merit federal habeas relief.
In Ground Four, petitioner claims that there was insufficient evidence to find that he used or discharged a firearm in committing the offenses because only a BB gun was found.
Petition Memo at 11.
Petitioner argues that the evidence tended to show that if petitioner used a "firearm" in any of the robberies, it was a BB gun.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
All evidence must be considered in the light most favorable to the prosecution,
Sufficiency of the evidence claims are judged by the elements defined by state law.
As applicable to the enhancements, a "firearm" is defined in California Penal Code sections 12001 and 16520(a) as "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion."
Petitioner argues that under
The facts set forth in the Merits R&R (Docket No. 45 at 3-4) — which the Court has independently determined accurately reflect the substance of the record — are incorporated herein by reference. The robberies in question occurred on August 2, 9, and 16, 2001, when petitioner and a partner robbed parking lot attendants at gunpoint.
Candelario Medina testified that on August 2, 2001, two men who he thought were customers walked into the parking lot where he was working. (RT 929-30). One of the men pushed Medina and put a gun to Medina's heart, while the other man took money from Medina's pocket. (RT 930-32, 948). Medina protested saying, "that's my salary," and the man who took his money gave him $15 back. (RT 930). The two men were two feet away from Medina at the time. (RT 930). Medina identified petitioner in court, and prior to trial in a photographic lineup and a live lineup, as the man who put the gun to his heart. (RT 930-31, 944-48, 1541-43). Medina said he did not call the police because the men took only around $100 from him and Medina did not want to waste time. (RT 932). Medina told his supervisor, Richard Espinoza, about the robbery the following day. (RT 932, 951, 954-58).
On August 9, 2001, Medina was working when the same two men returned to his parking lot. (RT 932). As they entered, Medina told Espinoza that they were the two men who had robbed him. (RT 932-33, 949-50, 965, 967). One of the men who Medina identified as petitioner had a gun in his hand. (RT 933, 936). Espinoza tried to run but petitioner grabbed him and put the gun to Espinoza's neck. (RT 933, 935, 949, 960-61, 967-68).
Medina said that he was familiar with guns because Medina owned seven guns in his name, including revolvers. (RT 937-39, 973-74). He described petitioner's gun as a chrome or silver semiautomatic "38 or a 45." (RT 938, 972-73). It was the same gun petitioner had put to Medina's heart during the first robbery. (RT 938, 973). Medina thought the gun was a real gun and his opinion became more certain during the second robbery because petitioner prepped the gun "just like it was a real one." (RT 986-87). After the men left, Espinoza and Medina called the police who responded to the lot. (RT 941-42).
Espinoza testified that he was working with Medina on August 9, 2001, when he saw two men approach who Medina said looked like the men who had robbed Medina a week before. (RT 991-92, 1008-09, 1013). Espinoza at first said he did not know that Medina had been robbed before but later testified that Medina had told him about the first robbery around the time it happened. (RT 991, 1009-11). When Medina pointed the men out, Espinoza tried to run but one of the men, who he identified in court and before trial in a live lineup as petitioner, had a gun and pulled on the gun to chamber a bullet, so Espinoza stopped running. (RT 992-93, 1002-04, 1011, 1014, 1542-43).
Julio Balladares testified that he was working at a parking lot on August 16, 2001, when a red van pulled in. (RT 1240-45, 1260, 1283-84). Balladares walked to the driver to hand him a parking ticket and collect the parking fee. (RT 1245). The passenger of the van got out and walked up to Balladares and pulled a gun on Balladares. (RT 1245-46, 1261). Balladares identified petitioner in court as the driver of the van and co-defendant Alberto as the passenger. (RT 1246).
Alberto pulled out a pistol, pointed it at Balladares and told Balladares to give him the money. (RT 1247). Alberto pushed Balladares toward a car and put the gun to Balladares's neck. (RT 1247, 1263-67). Balladares handed Alberto the money. (RT 1248). Alberto demanded more money, saying he knew Balladares had more. (RT 1249). The driver — petitioner — was aiming a gun at Balladares. (RT 1249, 1285). Balladares said petitioner's gun looked like a revolver and Alberto's gun looked like a semiautomatic gun. (RT 1249-50, 1262).
Balladares denied having more money, when Balladares did have more, and Alberto told petitioner, "Shoot that guy. He doesn't want to give me all the money." (RT 1250, 1285). Balladares heard a gunshot coming from petitioner in the van. (RT 1250-51, 1268, 1281, 1286, 1292-93). Balladares looked back and saw petitioner pointing the revolver at him. (RT 1287). Balladares handed Alberto all the money he had. (RT 1251, 1287, 1293-95). Balladares heard one more shot then Alberto returned to the van and the men drove out of the parking lot. (RT 1251-52, 1255, 1281, 1287-88, 1295). Petitioner again was pointing the revolver at Balladares. (RT 1288-89). A patrol car was approaching and a coworker of Balladares indicated to the police that the van was the source of the shots. (RT 1254-56). Balladares ran after the van and saw it stopped two blocks away with police present. (RT 1256-57, 1283). Once petitioner was detained, police took Balladares to where petitioner was and asked Balladares if he was one of the men who robbed him and Balladares said yes, he was the driver. (RT 1257-58, 1276-77, 1280-81, 1289).
Responding police officer Jesse Mojica testified that he and his partner Officer Cervantes were patrolling on August 16, 2001, when Mojica heard a single gunshot a short distance away. (RT 1027-29, 1053, 1056, 1215-16). Officer Mojica actually flinched or ducked down when he heard the shot. (RT 1028, 1217). The shot was "close" and "loud." (RT 1217). Officer Mojica drove in the direction where he heard the shot and saw a red minivan with two people inside pulling away from the side of the street. (RT 1029-30, 1032, 1057, 1226). A parking attendant came running from the side of the street waving a flag saying, "The van, the van." (RT 1030-32, 1226). Officer Mojica made a U-turn and started following the van while Officer Cervantes radioed in "shots fired." (RT 1032, 1057-58, 1226-27). Officer Mojica followed the van from about two to three car lengths behind for about two blocks before the van entered the driveway for a parking lot and the two men inside ran from the van into the lot. (RT 1033-38, 1227, 1231-32). As Officer Mojica approached the van, he circled wide because he was afraid more shots would be fired and he believed the men had a gun. (RT 1034, 1223-24). He had not seen anything thrown from the van as he followed it. (RT 1227). When the driver exited the van, Officer Mojica's view of the driver was obstructed by the van for less than 30 seconds. (RT 1228-29). Officer Mojica searched the lot for the two men and did not find them, so he got back in his car and circled the area looking for the men. (RT 1038-43, 1059, 1232-33).
Officer Mojica found a man lying down along a fence line who he identified in court as petitioner. (RT 1043-44). The police then took petitioner into custody. (RT 1044). Petitioner's sweatshirt was torn and matched a piece of torn material found on a fence inside the parking lot where the two men first ran from the van. (RT 1040-41, 1045, 1219).
Officer Mojica returned to the van and its doors were still open. (RT 1048). A search of the van yielded a dark colored BB gun that was a replica of a 9-millimeter semi-automatic pistol. (RT 1048, 1220-21, 1233-34). Officer Mojica did not recall if the top of the BB gun moved like the slide of a real gun would move. (RT 1234). No gun or bullets casings were ever found in a search of the area. (RT 1220, 1236-37, 1558).
On August 16, 2011, Detective George Marentez was working undercover in the area of the parking lot when he heard one gunshot followed by a second gunshot. (RT 1319-21). Detective Marentez drove to investigate if anyone was hurt when he heard a police call that an officer needed help one block away from where Detective Marentez was located. (RT 1320-22, 1515). Such a call is typically made when an officer thinks his or her life is in danger, such as when shots are fired. (RT 1322). Detective Marentez saw a crowd of people and asked them if they had seen anyone come by with a gun. (RT 1322-23, 1516). The people pointed him South, so Detective Marentez drove South where he saw a van with its doors open that appeared to be empty, with one empty police car nearby and two others responding in that direction. (RT 1323, 1336-37, 1506-07, 1517-18). Detective Marentez saw defendant Alberto running away from the area to a parking lot and a parked car. (RT 1325-28, 1337, 1507-10). Alberto drove the car away and Detective Marentez followed Alberto while radioing in information for uniformed officers to stop Alberto's car. (RT 1328-29, 1511-13). Uniformed officers caught up with Alberto and detained him. (RT 1331, 1513-14, 1525-34).
At the close of the prosecution's case, outside the presence of the jury defense counsel moved to dismiss the gun use allegations given that only a BB gun had been recovered. (RT 1576-77). The trial court denied the motion, finding enough evidence — particularly given the witness testimony about hearing a weapon being fired — to submit to the jury on the issue of whether the guns used were real or a BB gun. (RT 1577-79).
In closing, petitioner's counsel argued: There was no physical evidence a live firearm was used to rob Balladares. (RT 1881). No real gun was recovered. (RT 1882). No bullet casings were recovered. (RT 1882). No bullet holes were found and no parking lot customers complained of any bullet holes to their cars. (RT 1882-83). No gunpowder residue was recovered. (RT 1883). The only physical evidence recovered was the "fake black replica air gun." (RT 1883). Accordingly, the only evidence that a live firearm was shot was the opinion evidence that the sounds the police officers and Balladares heard "resembled" a live firearm being fired. (RT 1881). Officer Mojica heard only one shot; whereas Balladares testified he heard two shots. (RT 1881-82). As to the earlier robberies of Medina and Espinoza, the evidence whether a live firearm was used was even weaker: no guns were recovered and there was no allegation by the victims that shots were even fired. (RT1883-84). The only testimony was from the victims that an object resembling a firearm was brandished and that on one occasion petitioner made a "cocking" action. (RT 1884).
As the foregoing reflects, the jury was squarely presented with petitioner's theory that a real gun was not used in any of the offenses. By its verdicts, the jury clearly rejected petitioner's theory in favor of the testimony of witnesses who said they saw petitioner with a real gun during the first two robberies, and heard petitioner fire a real gun at the last robbery. The witness testimony was sufficient to support the jury's true findings on the firearm enhancement allegations.
Based on a de novo review, the Court concludes that the evidence adduced at trial was sufficient to support the jury's true findings on the firearm allegations and accordingly, that Ground Four does not entitle petitioner to habeas relief.
IT IS THEREFORE ORDERED: (1) the Merits R&R (Docket No. 45) which recommends denial of Grounds One and Three on the merits is accepted and approved, the objections thereto are overruled and Grounds One and Three are denied on the merits; (2) the Stay R&R (Docket No. 16) which recommends denial of the Motion to Stay is accepted and approved, the objections thereto are overruled to the extent they are inconsistent with this Order, and the Motion to Stay is denied; (3) alternative to the acceptance and approval of the Stay R&R and denial of the Motion to Stay, the new claim and Grounds Two and Four are denied on the merits; (4) the Petition is denied and this action is dismissed with prejudice; and (5) Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for petitioner and respondent.
