Diaz v. Davey
Decision Date | 06 March 2017 |
Docket Number | Case No. 1:15-cv-00898 LJO MJS (HC) |
Court | U.S. District Court — Eastern District of California |
Parties | DARRYL DIAZ, Petitioner, v. DAVID DAVEY, Warden, Respondent. |
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.Respondent, David Davey, warden of California State Prison, Corcoran, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.Respondent is represented by Rebecca Whitfield of the office of the California Attorney General.The parties declined magistrate judge jurisdiction.(ECF No. 6, 17.)
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on October 12, 2011, for three counts of each of sexual intercourse with a child and lewd act upon a child.(Lodged Doc. 3, Clerk's Tr.at 423- 26.)On February 17, 2012, Petitioner was sentenced to an indeterminate prison term of fifty (50) years to life plus an additional determinate term of seven years.(Id.)
Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District.(LodgedDoc. 8.)On December 23, 2013, the appellate court affirmed the conviction.(Answer, Ex. A)Petitioner sought review by the California Supreme Court on January 28, 2014.(LodgedDoc. 11.)The petition for review was denied on March 12, 2014.(LodgedDoc. 12.)
Petitioner proceeded to file collateral appeals in the form of petitions for writ of habeas corpus in the state courts.He filed a petition with the Fresno County Superior Court on September 10, 2014.(LodgedDoc. 13.)It was dismissed on September 26, 2014 without prejudice to refiling as Petitioner failed to attach a proper proof of service.(LodgedDoc. 14.)Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court on June 1, 2015.The petition was summarily denied on August 19, 2015.(Lodged Docs. 15-16.)
Petitioner filed his federal habeas petition on June 15, 2015.(Pet., ECF No. 1.)Petitioner raised the following five claims for relief: (1) that counsel was ineffective by not questioning the victim whether she was home at the time of the incident; (2) that counsel was ineffective for failing to request transcripts of the opening and closing statements; (3) that the trial court erred by failing to give an unanimity instruction; (4) that the trial court erred in failing to exclude certain images that were overly prejudicial; and (5) that his due process rights were violated by the use of a jury instruction regarding the admission of prior crimes evidence.(Pet.at 5-17.)
Respondent filed an answer to the petition on January 27, 2016.(Answer, ECFNos. 18-19.)Petitioner filed a traverse to the answer on April 15, 2016.(Traverse, ECF No. 24.)
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