Ashley Johnigan v. Deborah Patrick

Filing 33

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 28 by Judge Andre Birotte, Jr. IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ASHLEY JOHNIGAN,
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)
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Petitioner,
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v.
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KIMBERLY HUGHES, Acting Warden, )
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Respondent.
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NO. CV 13-1465-AB (AS)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the

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Petition, all of the records herein and the attached Report and

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Recommendation of United States Magistrate Judge.

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made a de novo determination of the portions of the Report and

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Recommendation to which no objections were directed, the Court

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concurs with and accepts the findings and conclusions of the

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Magistrate Judge.

After having

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The Petition challenges the sufficiency of the evidence to

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support a finding of implied malice, an element of the second

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degree murder charge, and trial counsel’s alleged ineffectiveness

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in advising Petitioner to reject a plea bargain involving a nine-

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year sentence. The Magistrate Judge recommended that the Petition

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be denied and dismissed with prejudice because the California

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Supreme Court’s rejection of these claims was not contrary to, or

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an unreasonable application of, clearly established federal law,

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and was not based on an unreasonable determination of the facts.

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(Docket

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assistance of counsel claim, the California Supreme Court noted

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that petitioner had provided no evidence to support her claim. Id.

No.

28).

With

respect

to

Petitioner’s

ineffective

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The Court has carefully considered Petitioner’s objections and

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her submission, for the first time in the record, of declarations

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from her

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ineffective assistance of counsel. A district court has discretion

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to consider evidence presented for the first time in a party’s

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objection to the Magistrate Judge’s Report. United States v.

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Howell, 231 F.3d 615, 621 (9th Cir. 2000); see also Brown v. Roe,

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279

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declarations to be nothing more than after-the-fact self serving

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statements that are not supported by the record and insufficient to

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support Petitioner’s allegations.

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which the Court has adopted, a Petitioner’s own self-serving

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statements are insufficient to establish her allegations.

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Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (rejecting

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ineffective assistance of counsel claim when “[o]ther than Womack’s

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own self-serving statement, there is no evidence” to support the

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claim).

F.3d

mother and her husband in support of her claim of

742,

744

(9th

Cir.

2002).

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The

Court

finds

the

As set forth in the Report,

See

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Accordingly, Petitioner’s Objections are overruled and this

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Court adopts the Report and Recommendation of the Magistrate Judge.

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IT IS ORDERED that Judgment be entered denying and dismissing
the Petition with prejudice.

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IT IS FURTHER ORDERED that the Clerk serve copies of this

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Order, the Magistrate Judge’s Report and Recommendation and the

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Judgment

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herein

on

counsel

for

Petitioner

and

counsel

Respondent.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

March 3, 2015

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ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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for