Kevin Lamont Wilson v. Foulk

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATIONS and Denying Certificate of Appealability and Evidentiary Hearing 16 by Judge Philip S. Gutierrez. (lwag)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KEVIN LAMONT WILSON,

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Petitioner,
v.
FOULK, Warden,
Respondent.

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Case No. LA CV 14-3253 PSG (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY AND
EVIDENTIARY HEARING

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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 (“R&R”), Petitioner’s Objections to the R&R,

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

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

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and Traverse, and lack merit for the reasons set forth in the R&R. There are two

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issues, however, that warrant brief amplification here.

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First, Petitioner notes, correctly, that the R&R appears to overlook the affidavit

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that Petitioner attached to his Traverse. (See Objections at 2-3; Traverse at 30-33.)

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Therein, Petitioner’s wife affirms that: (1) she was willing to testify at Petitioner’s

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trial; (2) the prosecution prevented her from testifying; and (3) if allowed to testify, she

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would have told the jury that the victim – who testified for the prosecution – was “a

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crook” who had engaged in “identity theft and credit card fraud” with Petitioner.1

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(Traverse at 32-33.)
As a rule, a prosecutorial misconduct claim may provide grounds for habeas

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relief only when deemed prejudicial under the harmless error test articulated in Brecht

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v. Abrahamson, 507 U.S. 619, 637 (1993). That is, relief is warranted only if the

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misconduct had a “substantial and injurious effect or influence in determining the

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jury’s verdict.” Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (citing Brecht,

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507 U.S. at 637).
Here, Petitioner argues that his wife’s testimony was “vital to Petitioner[’]s

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defense strategy of impeaching” the victim. (Objections at 2.) However, Petitioner’s

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attorney raised the victim’s alleged criminal activities during his cross-examination of

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both the victim and the investigating detective. (See Lodg. No. 4 at 82-83, 86, 196.)
Thus, on this record – and particularly in light of the ample evidence at trial of

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Petitioner’s guilt – the Court does not find the requisite prejudice here. (See Lodg. No.

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10 at 2-4); see also 28 U.S.C. § 2254(e)(1) (facts presumed correct).
Second, Petitioner argues that “there was no one present on [his] behalf” when

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the victim identified Petitioner in a photographic line-up. (See Objections at 4.)
However, this line-up took place before Petitioner’s arrest, and thus before the

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attachment of his Sixth Amendment right to counsel. (See Lodg. No. 4 at 120, 177,

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182, 224); see also United States v. Ash, 413 U.S. 300, 321 (1973); Kirby v. Illinois,

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406 U.S. 682, 688 (1972).

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Thus, Petitioner is not entitled to federal habeas relief.

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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

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Specifically, according to Petitioner, the “equipment and materials that [the victim] s[ells] can
also be used in manufacturing fraudul[e]nt credit cards and false identification cards.” (Pet. at 10.)

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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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Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster,

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131 S. Ct. 1388, 1398 (2011) (AEDPA “requires an examination of the state court-

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decision at the time it was made. It follows that the record under review is limited to

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the record in existence at that same time i.e., the record before the state court.”).

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DATED: __June 23, 2015_________________
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HON. PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE

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