Royce Sung Kwark v. Ron Rackley

Filing 47

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Michael W. Fitzgerald for Report and Recommendation (Issued) 41 (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROYCE SUNG KWARK, 12 13 14 15 Petitioner, v. RON RACKLEY, Warden, Case No. CV 15-04088 MWF (AFM) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 18 on file, the Report and Recommendation of United States Magistrate Judge, 19 petitioner’s objections to the Report, and respondent’s response to the objections. 20 Further, the Court has engaged in a de novo review of those portions of the Report 21 to which petitioner has made objections. 22 In Grounds One and Two of the Petition, petitioner claims that (1) his trial 23 counsel was ineffective for failing to present evidence impeaching the victim, and 24 (2) the prosecutor presented false evidence about the victim’s cell phone being 25 stolen. The crux of petitioner’s objections is that it was objectively unreasonable 26 for the California Court of Appeal to deny these claims without further 27 development of the record because petitioner had pled a prima facie case for relief. 28 As respondent points out, however, it would not have been objectively 1 unreasonable for the California Court of Appeal to conclude that further 2 development was unnecessary in light of the record already before it. Cf. Nunes v. 3 Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (petitioner had pled a prima facie 4 case for relief where his assertions, taken at face value, were supported by “ample 5 evidence in the record before the state court to support those assertions”). 6 Specifically, with respect to Ground One, the record before the state court 7 reflected that the victim was impeached by petitioner’s trial counsel on numerous 8 grounds and that the evidence of petitioner’s guilt did not rely solely on the victim’s 9 testimony. In particular, items taken from the victim during the attack — her 10 driver’s license and forced statement — were later found in petitioner’s apartment, 11 and he had no credible explanation for his possession of them. With respect to 12 Ground Two, the record before the state court reflected that the allegedly false 13 evidence about the stolen cell phone, even taken at face value, was not material 14 because the cell phone was only a minor issue as to the victim’s credibility, which 15 was impeached on several more significant grounds before the jury. Moreover, the 16 victim was in fact cross-examined about the cell phone. Given this evidence in the 17 record already before the state court, it would not have been objectively 18 unreasonable for the California Court of Appeal to reject petitioner’s claims. 19 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 20 the Magistrate Judge is accepted and adopted; (2) petitioner’s request for an 21 evidentiary hearing is denied; and (3) Judgment shall be entered denying the 22 Petition and dismissing this action with prejudice. 23 24 DATED: April 26, 2017 25 26 27 ____________________________________ MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE 28 2

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