Royce Sung Kwark v. Ron Rackley
Filing
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ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Michael W. Fitzgerald for Report and Recommendation (Issued) 41 (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROYCE SUNG KWARK,
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Petitioner,
v.
RON RACKLEY, Warden,
Case No. CV 15-04088 MWF (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Respondent.
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records
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on file, the Report and Recommendation of United States Magistrate Judge,
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petitioner’s objections to the Report, and respondent’s response to the objections.
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Further, the Court has engaged in a de novo review of those portions of the Report
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to which petitioner has made objections.
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In Grounds One and Two of the Petition, petitioner claims that (1) his trial
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counsel was ineffective for failing to present evidence impeaching the victim, and
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(2) the prosecutor presented false evidence about the victim’s cell phone being
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stolen. The crux of petitioner’s objections is that it was objectively unreasonable
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for the California Court of Appeal to deny these claims without further
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development of the record because petitioner had pled a prima facie case for relief.
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As respondent points out, however, it would not have been objectively
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unreasonable for the California Court of Appeal to conclude that further
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development was unnecessary in light of the record already before it. Cf. Nunes v.
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Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (petitioner had pled a prima facie
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case for relief where his assertions, taken at face value, were supported by “ample
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evidence in the record before the state court to support those assertions”).
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Specifically, with respect to Ground One, the record before the state court
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reflected that the victim was impeached by petitioner’s trial counsel on numerous
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grounds and that the evidence of petitioner’s guilt did not rely solely on the victim’s
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testimony. In particular, items taken from the victim during the attack — her
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driver’s license and forced statement — were later found in petitioner’s apartment,
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and he had no credible explanation for his possession of them. With respect to
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Ground Two, the record before the state court reflected that the allegedly false
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evidence about the stolen cell phone, even taken at face value, was not material
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because the cell phone was only a minor issue as to the victim’s credibility, which
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was impeached on several more significant grounds before the jury. Moreover, the
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victim was in fact cross-examined about the cell phone. Given this evidence in the
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record already before the state court, it would not have been objectively
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unreasonable for the California Court of Appeal to reject petitioner’s claims.
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IT THEREFORE IS ORDERED that (1) the Report and Recommendation of
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the Magistrate Judge is accepted and adopted; (2) petitioner’s request for an
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evidentiary hearing is denied; and (3) Judgment shall be entered denying the
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Petition and dismissing this action with prejudice.
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DATED: April 26, 2017
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____________________________________
MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE
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