Cuero v. Adams et al

Filing 52

ORDER: (1) Adopting 42 the Findings and Conclusions of United States Magistrate Judge;(2) Denying 1 Petition for Writ of Habeas Corpus; and (3) Issuing a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 4/25/12. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL DANIEL CUERO,

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Civil No. 08cv2008-BTM (WMc)
Petitioner,

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(1) ADOPTING THE FINDINGS AND
CONCLUSIONS OF UNITED STATES
MAGISTRATE JUDGE;

vs.

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ORDER:

(2) DENYING PETITION FOR
WRIT OF HABEAS CORPUS; and

MATTHEW CATE, Secretary,
Respondent.

(3) ISSUING A CERTIFICATE OF
APPEALABILITY

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Petitioner is a state prisoner proceeding pro se with a Petition for a Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner entered a negotiated guilty plea

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in the San Diego County Superior Court which resulted in his conviction for causing great bodily

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injury while operating a motor vehicle under the influence of alcohol or drugs. (Pet. at 1-2.)

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Petitioner was sentenced to twenty-five years-to-life in state prison under California’s Three

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Strikes law as a result of a prior conviction for residential burglary and a prior conviction for

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assault with a deadly weapon. People v. Cuero, 2007 WL 841757 at *1 (Cal.App.Ct. Mar. 21,

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2007) (unpublished memorandum). Petitioner alleges here that he received ineffective assistance

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of trial and appellate counsel, that his plea agreement was violated, and that his sentence was

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unlawfully enhanced by the prior felony convictions. (Pet. at 6-8.)
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08cv2008

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Respondent filed an Answer to the Petition contending that Petitioner failed to state a

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colorable claim of ineffective assistance of counsel, that his plea agreement has not been

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violated, and that his sentence was properly enhanced. (EFC No. 35.) Petitioner responded with

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a Traverse in which he apparently attempts to present new claims based on the same facts which

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support the claims raised in the Petition, relating to allegations of ineffective assistance of

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counsel, use of his prior convictions to enhance his sentence, and the prosecutor’s actions in

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connection to the plea agreement. (EFC No. 41.) In particular, he contends that there was

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insufficient evidence to support using the prior convictions to enhance his sentence, and that

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their use violated ex post facto principles, constituted prosecutorial misconduct, and violated the

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principles discussed in Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham v.

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California, 549 U.S. 270 (2007). (Traverse at 5-11.)

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Presently before the Court is a Report and Recommendation (“R&R”) submitted by

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United States Magistrate Judge William McCurine, Jr. (ECF No. 42.) The Magistrate Judge

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found that the claims raised in the Petition are insufficiently meritorious to warrant federal

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habeas relief, and recommended denying the Petition and declining to exercise the Court’s

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discretion to address any new claims raised in the Traverse. (R&R at 2 n.1, 4-14.) Petitioner

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has filed Objections to the R&R in which he again attempts to present new claims arising from

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the same facts supporting his Petition claims. (EFC No. 45.) Specifically, he contends that he

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was improperly charged and prosecuted, his prior convictions were improperly used to enhance

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his sentence, and that his trial attorney was deficient in failing to object to improper procedures

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and failing to utilize proper procedures. (Obj. at 2-14.)

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The Court has reviewed the R&R and Petitioner’s Objections pursuant to 28 U.S.C.

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§ 636(b)(1), which provides that: “A judge of the court shall make a de novo determination of

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those portions of the report or specified proposed findings or recommendations to which

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objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

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The Court has reviewed those portions of the R&R to which Petitioner has objected and,

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based on a de novo review, ADOPTS the findings and conclusions of the Magistrate Judge. The
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08cv2008

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Court DENIES the Petition for a Writ of Habeas Corpus for the reasons set forth in the R&R.

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To the extent there are new claims raised in the Traverse or in Petitioner’s Objections to the

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R&R, they merely rely on the factual predicate of the claims presented in the Petition which the

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Magistrate Judge correctly found to be without merit, and the Court exercises its discretion and

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declines to address such claims. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (holding

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that district court has discretion whether to consider evidence presented for the first time in

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objections to an R&R); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)

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(stating that court may ignore issue raised for first time in traverse when scope of traverse has

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been specifically limited by court order and petitioner ignores order to file a separate pleading

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indicating intent to raise claim). The Court issues a Certificate of Appealability as to all claims

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raised in the petition.

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The Clerk shall enter judgment accordingly.

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IT IS SO ORDERED.

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DATED: April 25, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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08cv2008