Davione M McDowell v. J Janda

Filing 20

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ANDDENYING CERTIFICATE OF APPEALABILITY by Judge Dolly M. Gee for Report and Recommendation 16 . IT IS ORDERED THAT: 1) The Report and Recommendation is approved and acce pted; 2) Judgment be entered denying the Petition and dismissing this action with prejudice. Additionally, for the reasons set forth above and in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. Thus, the Court declines to issue a certificate of appealability. (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVIONE M. McDOWELL,

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Petitioner,
v.
W.L. MONTGOMERY, Warden,
Respondent.

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Case No. CV 13-7299 DMG (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate

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Judge’s Report and Recommendation, Petitioner’s Objections to the Report and

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Recommendation, and the remaining record, and has made a de novo determination.

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Petitioner’s Objections generally reiterate the arguments made in the Petition,

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and lack merit for the reasons set forth in the Report and Recommendation. There is

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one issue, however, that warrants brief amplification here.

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In his Objections, Petitioner argues that the Report and Recommendation

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“ignore[s] the crucial fact” that certain surveillance footage may have been taken, not

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near the time of the shooting, but rather a week later. (Objections at 5-6.)

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Petitioner is mistaken. Instead, the record indicates that video footage was taken

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near the time of the shooting, and a week later, investigators sought an enhanced photo

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still from that footage. (Lodg. No. 2, Reporter’s Transcript (“RT”), at 681-82, 711-14,

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901-904; Lodg. No. 6, California Court of Appeal Opinion, at 3, 7-8.)
Moreover, Petitioner’s counsel raised doubts about the timing of this footage at

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trial. (RT at 901-904.) As a rule, “[i]t is the responsibility of the jury – not the court –

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to decide what conclusions should be drawn from evidence admitted at trial.”

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Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) (quoting Cavazos v.

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Smith, 132 S. Ct. 2, 4 (2011)). Here, the jury convicted Petitioner after considering not

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only the footage, but also the identification testimony of four eyewitnesses. (Lodg.

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No. 1, Augmented Reporter’s Transcript, at 64-65, 71; RT at 918, 938, 1205, 1279,

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1294, 1297.) Hence, the Magistrate Judge correctly found that “viewing the evidence

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in the light most favorable to the prosecution, [a] rational trier of fact could have found

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the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

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443 U.S. 307, 319 (1979).

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Accordingly, IT IS ORDERED THAT:

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1.

The Report and Recommendation is approved and accepted;

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2.

Judgment be entered denying the Petition and dismissing this action with
prejudice; and

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3.

The Clerk serve copies of this Order on the parties.

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Additionally, for the reasons set forth above and in the Report and

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Recommendation, the Court finds that Petitioner has not made a substantial showing of

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the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b);

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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a

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certificate of appealability.

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DATED: November 24, 2014
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DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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