Mark A Harris v. Michael D McDonald
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge James V. Selna for Report and Recommendation (Issued), 79 . Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (See Order for details) (bem)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MARK A. HARRIS,
WARREN L. MONTGOMERY,
Case No. CV 11-7519-JVS (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the
18 Petition, all the records and files herein, and the Report and
19 Recommendation of U.S. Magistrate Judge.
On September 15, 2016, Petitioner filed objections to the
21 Report and Recommendation and a request for a certificate of
For the most part Petitioner simply repeats
23 arguments from his Petition and Reply.
Moreover, almost all of
24 Petitioner’s objections to the R. & R. rest on his assertion that
25 the Magistrate Judge, like the state courts, “ignored” critical
26 evidence, in the form of his mother’s and his own declarations,
27 of a whole host of “facts” allegedly showing that had he been
28 advised of the correct parole term he would not have pleaded
(See, e.g., Objs. at 12-13.)
But the Magistrate Judge
2 in fact discussed Petitioner’s and his mother’s declarations at
3 length (R. & R. at 14-16; see also Lodged Doc. 5 at 1-2 (state
4 superior court discussing Petitioner’s “exhibits,” including
5 declarations); she simply concluded, correctly, that the state
6 court was not objectively unreasonable in finding Petitioner’s
7 assertions “wholly unbelievable” because by entering a guilty
8 plea he shaved 20 years off his sentence and prevented his
9 grandmother from having to testify, which he acknowledged was
10 important to him and his family (see R. & R. at 17-20, 24).
Petitioner also argues, as he did in his Petition, that his
12 claims should be reviewed de novo, not with AEDPA deference.
13 (See generally Objs.)
He is incorrect.
(See R. & R. at 6-7.)
14 As to Petitioner’s specific objection that the Magistrate Judge
15 improperly applied the look-through doctrine to review the
16 superior court’s decision (Objs. at 6), she did not: although the
17 state supreme court indicated that it was denying all of
18 Petitioner’s claims “on the merits” (Lodged Doc. 9), because its
19 decision included no analysis, the Magistrate Judge properly
20 looked to the last reasoned decision, that of the superior court.
Having made a de novo determination of those portions of the
22 Report and Recommendation to which objections have been made, the
23 Court accepts the findings and recommendations of the Magistrate
IT THEREFORE IS ORDERED that Judgment be entered denying
25 the Petition and dismissing this action with prejudice.
October 14, 2016
JAMES V. SELNA
U.S. DISTRICT JUDGE
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