Gevonte Deshawn Gwin v. Martel

Filing 54

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Michael W. Fitzgerald for Report and Recommendation (Issued) 42 . IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEVONTE DESHAWN GWIN,

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Petitioner
v.
MARTEL,
Respondent.

Case No. CV 14-6083-MWF (GJS)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (“Petition”) and

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all pleadings, motions, and other documents filed in this action, the Report and

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Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s

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Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.

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72(b), the Court has conducted a de novo review of those portions of the Report to

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which objections have been stated.

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In his Objections, Petitioner has made various new assertions and claims not

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previously presented in this action or in connection with the issues addressed by the

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Report. A district court has discretion, but is not required, to consider evidence or

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arguments presented for the first time in objections to a report and recommendation.

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See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell,

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231 F.3d 615, 621-22 (9th Cir. 2000). The Court has exercised its discretion with

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respect to these new matters as discussed below.

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Petitioner contends that he was entitled to de novo review of the claims raised in

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his state habeas proceedings simply because the California Supreme Court’s Order

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denying relief was summary. (Objections at 2.) Petitioner is mistaken. See

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Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 98-100 (2011).

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Petitioner asserts that the Petition raises a sufficiency of the evidence claim that

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is broader than the claim he exhausted in the state courts and raised through Ground

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Six of the Petition. (Objections at 2.) This assertion is factually incorrect. (See

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Petition at (6) and 6F-6F2.) Moreover, any such expansion now of the sufficiency

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of the evidence challenge to Petitioner’s conviction would be unexhausted and

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likely untimely.

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To the extent that Plaintiff is attempting to challenge the propriety of certain trial

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evidence regarding Petitioner’s mail and recordings of telephone calls on the ground

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that such evidence was obtained illegally (Objections at 9 & n.2, 12 & n.4-5, 14),

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this is a new claim that was not raised in the Petition. Whether or not this claim is

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unexhausted (and Petitioner does not state that it is exhausted) and/or untimely,

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habeas claims must be raised in the Petition and before the Magistrate Judge in the

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first instance, and they are not properly brought before the Court in objections to a

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Magistrate Judge’s report and recommendation. See Greenhow v. Secretary of

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Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“allowing parties to

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litigate fully their case before the magistrate and, if unsuccessful, to change their

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strategy and present a different theory to the district court would frustrate the

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purpose of the Magistrate Act”), overruled on other grounds by United States v.

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Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam); see also Rule

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2(c)(1) of the Rules Governing Section 2254 Cases in the United States District

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Courts (the petition “must” “specify all grounds for relief available to the

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petitioner”);Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (declining to
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consider three additional ineffective assistance of counsel claims and noting, “since

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they were not made in the federal petition, we need not consider them”). The same

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conclusion follows as to Petitioner’s attempted assertion of a new claim based on an

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“involuntary confession” (Objections at 14), namely, that this new claim is not

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properly presented for the first time in Objections to the Report and will not be

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considered.

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The Court also declines to consider the other claims newly alleged in the

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Objections, including: a new claim of instructional error and unfair lessening of the

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burden of proof (Objections at 49-50); a new ineffective assistance of counsel claim

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related to Petitioner’s gang moniker (Objections at 69-70); and various ineffective

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assistance of trial and appellate counsel claims that were raised in the state courts

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but were not raised in the Petition (Objections at 15-17 & n. 8-10).

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Finally, in connection with Ground One subclaim (3), a prosecutorial misconduct

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claim, in arguing that the Magistrate Judge erred, Petitioner now attempts to

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establish that the trial court incorrectly ruled that a recording of a telephone

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conversation was admissible, and he argues that this evidence should have been

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suppressed. Petitioner asks the Court to “exercise independent judgment to

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determine whether, on the facts found[,] a search conducted by wiretap was

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unreasonable under the Fourth Amendment and whether the wiretap was authorized

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and conducted in conformity with the federal and state statutes regulating such a

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search.” (Objections at 31.) Apart from the fact that this is a new (and likely

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unexhausted) claim that is not properly raised before the Court in Objections, any

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such claim appears to be barred under the doctrine established in Stone v. Powell,

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428 U.S. 465 (1976). Accordingly, the Court declines to consider this new claim.

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The Court has carefully considered Petitioner’s Objections. Although the

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Objections are extremely lengthy and well-argued, the Court concludes that nothing

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set forth therein affects or alters, or calls into question, the analysis and conclusions

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set forth in the Report.
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Having completed its review, the Court accepts the findings and

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recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1)

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the Petition is DENIED; and (2) Judgment shall be entered dismissing this action

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with prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATE: February 6, 2017

__________________________________
MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE

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