Appellate court rejects Tory Lanez's habeas petitions in Megan Thee Stallion appeal
The three-justice panel has not issued its ruling on Lanez's main appeal, which is scheduled for oral argument Monday in Los Angeles.
A California appellate court on Tuesday rejected most of rapper Tory Lanez’s appeal of his convictions and 10-year sentence for shooting Megan Thee Stallion.
A three-justice panel with Division Three of the 2nd District Court of Appeal denied two petitions that sought an evidentiary hearing or a new sentencing based on alleged new evidence. The justices also said he failed “to provide any reasonably available documentary evidence” for his argument that the DNA testing presented at trial violated industry-accepted standards.
Justices Lee Smalley Edmon, Anne H. Egerton and Rashida A. Adams have not yet issued their decision on Lanez’s main appeal, which is scheduled for oral argument on Monday at 9 a.m. in Los Angeles.
His case is laid out in a 103-page filing on Feb. 26, 2024. It includes arguments that the trial judge, Los Angeles County Superior Court David V. Herriford, erred when allowing testimony and other evidence about Megan’s “emotions about the incident and its aftermath,” and that he erred when he said if Lanez testified, which he did not, he could be questioned about songs he wrote related to the July 2020 shooting.
Lanez’s appeal argues Herriford shouldn’t have allowed prosecutors to use as evidence a comment made by Lanez’s Instagram account that said “that’s not true” in reply to a comment that said Megan’s friend Kelsey Harris was the shooter.
It also argues Herriford shouldn’t have allowed jurors to hear a recorded interview Harris gave prosecutors before trial in which she described the shooting and identified Lanez as the gunman. The judge admitted the recording after Lanez’s attorney implied in his cross-examination of Harris that prosecutors had unduly pressured her to implicate Lanez.
Lanez’s defense in trial was that Harris is the one who fired the 9 mm semiautomatic handgun five times at Megan, injuring her feet, during an argument about their shared romantic interest in Lanez.
A Los Angeles County jury on Dec. 23, 2022, convicted Lanez of first-degree assault with a firearm, negligent discharge of a firearm and possession of a concealed and unregistered firearm in a vehicle. He was handcuffed in the courtroom and has been in custody ever since.
Herriford, a 2010 Arnold Schwarzenegger appointee and former criminal defense attorney, sentenced Lanez to 10 years in prison during a two-day hearing in August 2023. Prosecutors had requested 13 years.
Legal name Daystar Peterson, 33-year-old Lanez currently is incarcerated at the California Men’s Colony prison in San Luis Obispo. He moved there after another inmate stabbed him at California Correctional Institution in Tehachapi on May 12. A post on Lanez’s Instagram account said he was stabbed 14 times and both his lungs collapsed. California Department of Corrections and Rehabilitation officials identified his assailant as Santino Eddie Casio, 41, who has been serving a life sentence for murder since 2004.
Under his current judgment and sentence, Lanez is eligible for a parole hearing in September 2029, according to the CDCR website.
His family and friends recently enlisted a rightwing lobbyist who is advocating for Gavin Newsom to pardon him, and they’ve touted the scheduling of oral argument and the court’s acceptance of his habeas corpus petitions as wins. But Tuesday’s order disposes of both petitions, which total 135 pages, in 10 paragraphs, and it ends Lanez’s argument about DNA evidence and his false claim that prosecutors no longer have the gun used in the shooting.
The court’s upcoming oral argument also is routine.
“There’s considered to be a state constitutional right to oral argument, and that’s in most cases,” David Ettinger, a civil appellate specialist with Horvitz Levy LLP in Los Angeles, told me in a phone interview on Tuesday. “Which is different from the federal system. Federal courts of appeals can say, ‘Oh, we’re not going to hear oral argument on this.’”
The justices said after the petitions were filed in February 2024 and October 2024 it would consider them together with Lanez’s main appeal. They also last month allowed Lanez to supplement his October petition after Morgan said she needed to do so
His supporters hailed the moves as a huge win and ignited a social media storm that included a paparazzi approaching Megan’s boyfriend, professional basketball player Klay Thompson, on a public street and asking him, “How you feel about Tory coming home soon?”
“Get away from me, bro,” Thompson replied.
But while the courts routinely hold oral argument for appeals, they’re not required to do so for habeas petitions, and the justices in Lanez’s case deemed his petitions simple enough to reject without hearing argument, despite earlier consolidating them with the main appeal.
It’s unclear if the court has issued to the attorneys a tentative ruling on Lanez’s main appeal, but, according to interviews I conducted while a reporter for the Los Angeles Daily Journal from 2016 to 2020, appellate justices typically have a ruling prepared before oral argument that they’ve discussed among themselves and with their research attorneys.
Lanez’s supporters are publicly dismissing the court’s denial of the habeas petitions as insignificant because the main appeal still is pending.
Diana London, the rightwing lobbyist who is advocating for Lanez’s pardon, posted on X Wednesday, “For those wondering the mood over here?! 🤓 It’s this and always this! See you MONDAY! #Freetory”
The state Attorney General’s Office briefs defending Lanez’s convictions point to the totality of the evidence against him, including an apologetic phone call he made to Harris from jail that was recorded and apologetic texts he send Megan after he was released.
A 140-page response to Lanez’s opening brief says “none of appellant’s contentions have merit.”
“Finally, given the nature of the alleged errors and the compelling evidence of his guilt, appellant suffered no prejudice even if he could establish more than one error,” according to the filing.
Court says driver’s statements are inadmissible
Lanez’s first petition was about a new statement from his driver, Jauquan Smith, who drove Lanez, Megan — legal name Megan Pete — and Harris from reality star Kylie Jenner’s Hollywood Hills home the night of the shooting and was there when the shots were fired. Smith said he didn’t see who fired the gun but saw Lanez trying to take the gun from Harris before shots rang out.
Smith did not testify in Lanez’s December 2022 trial in Los Angeles. He appeared at the courthouse wanting to testify as a defense witness, but prosecutors asked for time to prepare for his unexpected testimony, and Lanez’s trial lawyer, George Mgdesyan, “stipulated that Smith was not going to be summoned, as the holidays were approaching and they feared that delaying the trial could cause a mistrial.”
In response, Deputy Attorney General Michael C. Keller cited previously undisclosed statements Mgdesyan made during trial sidebars and chambers meetings in which Mgdesyan “acknowledged that he had spoken with Smith regarding his observations and determined that Smith would not be a helpful witness.”
To try to counter that, Lanez’s new counsel obtained a declaration from Mgdesyan that said, In hindsight, I should not have used the word “favorable” or “not favorable” to discuss the testimony of Mr. Jaquan.”
However, that doesn’t address Keller’s legal argument that Mgdesyan knew how Smith would testify, and Mgdesyan’s declaration goes on to reiterate that very point when Mgdesyan writes, “Because the testimony of Mr. Smith would have been cumulative and risked running into the Christmas holiday, I did not call Mr. Smith as a witness to testify in Mr. Peterson’s trial.”
The appellate order issued Tuesday said Smith’s statements don’t comply with the California Code of Civil Procedure governing statements that aren’t sworn but were certified under penalty of perjury so “they are inadmissible.” They also agreed with Keller that the trial record establishes Lanez and his lawyers “affirmatively decided not to call Mr. Smith as a witness at trial.”
The same petition also argued Lanez should be resentenced in accordance to several new laws under California’s criminal justice reform act, but the order on Tuesday said all statues “were in effect when petitioner—represented by the same counsel who represents him in his direct appeal as well as this writ petition—was sentenced.”
“Petitioner has thereby forfeited these claims by virtue of counsel’s failure to raise them at the time of sentencing. In any event, the claims are without merit,” according to the order.
The lawyer mentioned is Jose Baez, the Florida-based lawyer known for representing accused child killer Casey Anthony and whom Lanez hired after trial.
Baez is not the lead attorney on Lanez’s appeal: Crystal Morgan, a licensed attorney in California since February 2021, handled the briefing and is set to argue on Monday. Baez, however, is formally listed as counsel in the appellate cases and has his name on all the filings.
Order ends arguments about DNA evidence
Investigators found gun shot residue on both Lanez and Harris but not Smith. They never took DNA samples from Harris, but prosecutors and the state Attorney General’s Office argued that doesn’t matter because criminalist Randy Zepeda of the Los Angeles Police Department determined a male contributed 90 percent of the DNA swabbed from the gun, and the remaining three types of DNA were too small to determine the gender of the contributors.
Zepeda testified that Lanez’s DNA wasn’t found on the gun magazine, but that he could neither be excluded or included as a contributor to the DNA found on the gun.
Lanez’s defense expert testified to the same results, though he also said he’d expect someone who fired a gun five times to have left behind detectable DNA.
In the appellate court, Lanez’s habeas petition argued jurors should have heard that it was “marginally more likely a random member of the black community contributed to the mixture than Petitioner contributed thereto,” but Keller said in his reply that such information “still would have enabled an expert to characterize the results as ‘inconclusive.’”
Tuesday’s order says Lanez “is contending that his own DNA expert failed to provide industry-accepted methodology” and that he “fails to provide any reasonably available documentary evidence in support” of the claim that the prosecution’s expert did so.
The panel said “this issue could have been, but was not, raised on appeal in the context of ineffective assistance of counsel.”
“Accordingly, even assuming the facts alleged in the petition are true, petitioner fails to allege facts establishing a prima facie case for habeas relief,” the justices wrote.
Court rejects new statement about Megan’s friend
Morgan filed a second habeas petition for Lanez in October 2024 that alleged she can’t test the firearm used in the shooting for DNA because the Los Angeles Police Department no longer has it. The Attorney General’s Office filed a declaration on Nov. 19 from an LAPD senior property manger who said the firearm, magazine “and all the bullet casings and the bullet fragments that were booked …. are still in the Los Angeles Police Department’s custody.”
After the appellate court scheduled oral argument last month, Morgan moved to amend the October petition to include a statement from Bradlie James, who said he worked as a security guard for Harris during trial and heard statements from her inconsistent with her trial testimony.
James said he heard Harris say, “How can I not tell on myself?” and “How am I protected if I tell certain things” and the father of her child “explained immunity to her.”
James also said Harris “stated that she shot the gun three times in the air and Daystar Peterson ran up to her and grabbed her arm, pushing it down causing the gun to fire twice more.”
In response, Keller said the alleged statements by Harris “cannot establish by preponderance of the evidence that false evidence was introduced against petitioner.”
“Moreover, given the overwhelming evidence of petitioner’s guilt, any false statement made by Harris was not material because it is not reasonably probable that petitioner would have obtained a better result absent such evidence,” Keller wrote in an Aug. 5 filing.
James’ statement was dated Aug. 28, 2024, and the appellate justices said Lanez “offers no explanation for why this document executed 11 months ago was not submitted until July 30, 2025, on the eve of oral argument, or why it was not raised in his successive writ petition filed October 23, 2024.”
“To the extent petitioner asserts the James Affidavit constitutes new evidence, the petition is untimely, and petitioner fails to explain and justify the significant delay in seeking habeas corpus relief on this basis,” the justices wrote. “Petitioner has not alleged facts establishing an exception to the rule requiring all claims to be raised in one timely filed petition.”
Race-related information request stays alive
The order keeps one request alive for Lanez: His “motion for relevant evidence” seeking state statistics regarding the number of people charged with first-degree assault who did or did not receive a gun-related sentencing enhancement, as well as information relating to “charges, conviction rates, and lengths of sentences, for celebrities of all races” without defining celebrities.
The motion argued he’s entitled to the information under California’s Racial Justice Act of 2020.
The appellate justices said he hasn’t made a “prima facie showing” that someone in trial “used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of his race, ethnicity, or national origin, or that he was charged with or convicted of a more serious offense or had a longer or more severe sentence imposed as a result of his race, ethnicity, or national origin.”
However, the California Supreme Court in December agreed to review the case of a Travis Lanell Montgomery, who is challenging his 2008 robbery-related convictions out of San Diego County and requesting discovery under the Racial Justice Act.
The order on Tuesday said whatever the court decides in In re Montgomery “may affect the availability of discovery under the Racial Justice Act, which may in turn affect the ability of a petitioner to plead claims under that statute.”
Given that, the appellate justices denied Lanez’s request “without prejudice” and said depending on how the Supreme Court decides Montgomery, Lanez “will be entitled to file a new petition for writ of habeas corpus raising issues under the Racial Justice Act.”
That applies to his request for discovery as well as his argument that he was convicted in violation of California Penal Code section 745, subdivision (a), which prohibits the state from seeking or obtaining a criminal conviction or sentence based on race, ethnicity, or national origin.
It’s not known when the California Supreme Court will rule in Montgomery, but the next filing deadline is Aug. 29.
Lanez’s future arguments, however, likely won’t hold much weight: Race wasn’t mentioned in trial, and he’s never directly alleged prosecutors or Judge Herriford, who is Black, were ever motivated by race.
Lanez to be deposed in defamation lawsuit against blogger
The appellate order comes as Lanez is to be deposed in prison in a federal lawsuit Megan has filed against an online commentator accused of conspiring with Lanez to defame and harass her.
In February, U.S. District Judge Cecilia M. Altonaga, who is the chief judge in the Miami-based Southern District of Florida, rejected a dismissal motion that said defendant Milagro Cooper is exercising her First Amendment rights when she speaks about the case.
Altonaga said her statements that Megan alleges defamed her “go beyond casual name-calling.”
“Given that a reasonable person could interpret Defendant’s statements as accusations of perjury, mental incapacity, and alcoholism, the Court finds they are actionable as defamation per se,” the judge wrote in a 25-page order.
Last week, Altonaga ordered Lanez to pay the money Megan’s attorneys at Quinn Emanuel Urquhart & Sullivan, LLP are charging her for the time they spent trying to take Lanez’s deposition in April. They said the deposition “proved to be a waste of time.”
“In the 44 minutes on the record, Mr. Peterson feigned ignorance regarding the definition of basic words, such as “discuss” and “approve;” harassed Ms. Pete’s counsel about her appearance; interrupted questioning to discuss his answers with his and Ms. Cooper’s counsel; and pretended that the video equipment was not working despite prison staff confirming it was,” according to an April 16 filing.
Altonaga order on Aug. 1 says Lanez’s deposition will proceed “under the supervision of Magistrate Judge Lisette M. Reid,” who is handling discovery-related issues in the lawsuit. The case is separate from a civil restraining order that Megan obtained against Lanez in Los Angeles County Superior Court in January.
Megan’s lawyers also want to take a re-deposition of Lanez’s friend Ceasar McDowell, who owns the Unite the People criminal justice litigation group that employs Morgan, Lanez’s appellate attorney, “due to his obstructive deposition conduct, which included deliberately evading questioning, engaging in inappropriate behavior, and directing offensive comments toward examining counsel.” Additionally, they say Cooper has deleted large amounts of her electronic communications, including with Lanez’s father, Sonstar Peterson.
Here’s how to watch oral arguments on Monday
The 2nd District Court of Appeal streams oral argument on its website. I’ve also requested the court’s permission to stream the arguments on my YouTube channel and share clips on my social media pages, including TikTok and Instagram.
I’ll discuss this week’s order and next week’s argument live on YouTube tomorrow (Thursday) at 12 p.m. PST / 3 p.m. EST.
Previous articles:
You can find PDFs of all my Twitter threads from the trial here.
I’ve got links to all my previous articles here. All post-conviction coverage on this website is paywalled, meaning it’s available to paid subscribers only, just like all other articles are paywalled after one month. Please consider purchasing a subscription to support my work.
Feb. 24 Tory Lanez to be deposed in prison as Megan's lawsuit against blogger proceeds
Jan. 9 Judge bars Tory Lanez from contacting Megan Thee Stallion for 5 years
July 29, 2024 State says Tory Lanez knew how his driver would testify but chose not to call him
Sept. 15, 2023 Tory Lanez insults reporter in final courtroom appearance for shooting Megan Thee Stallion
The habeas petitions and the main appeal opening brief are available below for paid subscribers. The Attorney General’s Office filings are down there, too, as are transcripts from the trial. Your paid subscriptions make my work possible.