Barry R McPherson v. Daniel Paramo

Filing 43

ORDER DENYING MOTION AND ACCEPTING FINDINGS AND RECOMMENDATIONS by Judge Andre Birotte Jr for Report and Recommendation (Issued) 39 . IT IS ORDERED that: (1) the motion for leave to amend filed on May 8, 2017 [Dkt. 23] is DENIED; (2) the Petition is DENIED; and (3) 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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BARRY R. McPHERSON,

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Petitioner
v.
DANIEL PARAMO, Warden,
Respondent.

Case No. SACV 16-170-AB (GJS)
ORDER DENYING MOTION
AND 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 28 U.S.C. § 2254

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petition (“Petition”) and all pleadings, motions, and other documents filed in this

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action, the Report and Recommendation of United States Magistrate Judge

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(“Report”), and Petitioner’s Objections to the Report. Pursuant to 28 U.S.C. §

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636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of

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those portions of the Report to which objections have been stated.

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Petitioner has appended to his Objections photocopies of a variety of new

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documents, which include: administrative grievance forms related to his complaints

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about law library access (Exhibits A-B); and newspaper and journal articles related

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to (a) asserted prosecutorial misconduct in the Orange County District Attorney’s

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Office in connection with other criminal cases, and (b) the asserted propensity of

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child victims and witnesses to lie (Exhibits C-H). A district court has discretion, but

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is not required, to consider evidence or arguments presented for the first time in

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objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-

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45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).

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The documents appended to the Objections as Exhibits C-H are not relevant to

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this case and, indeed, are not evidence. They were not part of the state record for

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Petitioner’s criminal case and are not probative with respect to the federal habeas

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claims before the Court. Accordingly, the Court exercises its discretion not to

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consider such newspaper and magazine articles.

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In doing so, the Court notes that Petitioner misapprehends the nature of federal

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habeas review, including the operation of 28 U.S.C. § 2254(d). Petitioner asserts

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that the Reporter’s and Clerk’s Transcripts are replete with “clear lies” by the child

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victim and that he should be allowed to rebut the victim’s trial testimony, as well as

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to show systemic prosecutorial misconduct, through the use of the magazine articles

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appended to the Objections. Petitioner further asserts that the Magistrate Judge

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erred in failing to hold an evidentiary hearing that would have allowed him to

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“rebut” the victim’s trial testimony. A Section 2254 habeas action is not a retrial of

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a state criminal case, however, and federal habeas review is not a mechanism by

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which a federal court supplants the factfinding made by the state court jury,

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including a jury’s credibility determinations. This is particularly true when, as here,

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a petitioner has not overcome the deferential standard of review mandated under

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Section 2254(d). See Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (federal

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habeas review under Section 2254(d)(1) is limited to the evidence introduced before

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the state court and “when the state-court record ‘precludes habeas relief’ under the

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limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

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hearing’”) (citation omitted); Gulbrandson v. Ryan, 738 F.3d 976, 993-94 (9th Cir.

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2013) (when a state court has denied claims on their merits, Pinholster precludes

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“further factual development of these claims” through an evidentiary hearing to
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determine whether Section 2254(d) is satisfied); Stokley v. Ryan, 659 F.3d 802, 809

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(9th Cir. 2011) (“Pinholster’s limitation on the consideration of [a petitioner’s] new

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evidence . . . in federal habeas proceedings also forecloses the possibility of a

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federal evidentiary hearing”).
With respect to Exhibits A-B, the Court has exercised its discretion to consider

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these documents, which Petitioner proffers in support of his contention that his

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motion for leave to amend should be granted. Having considered these documents,

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the Court finds that they do not alter, affect, or require any change to the analysis

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and conclusions in the Report. The Magistrate Judge considered Petitioner’s

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assertions of limitations on his law library access and found that, even if credited,

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they did not establish a right to receive equitable tolling. Petitioner’s complaints of

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periodic shortened library periods, such as receiving 78 hours of library time in a

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period when he believes he should have received 84 hours, are insufficient to

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establish an extraordinary circumstance that actually rendered it impossible for him

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to assert on a timely basis the claims at issue in the motion for leave to amend.
Petitioner’s assertions and arguments have been reviewed carefully. The Court,

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however, concludes that nothing set forth in the Objections or otherwise in the

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record for this case affects or alters, or calls into question, the findings and analysis

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

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and recommendations set forth in the Report.
Finally, the Court notes Petitioner’s motion filed on November 20, 2017 [Dkt.

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37, “Motion”], in which he asks the Court to vacate the reference to the Magistrate

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Judge. Nothing in the Motion, or in the history of this case, warrants vacating the

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reference. The Motion, therefore, is DENIED.

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Accordingly, IT IS ORDERED that: (1) the motion for leave to amend filed on

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May 8, 2017 [Dkt. 23] is DENIED; (2) the Petition is DENIED; and (3) Judgment

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shall be entered dismissing this action with prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: March 07, 2018
_______________________________
ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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