Rust v. Felker

Filing 15

ORDER overruling Petitioner's objections; adopting 12 Magistrate Judge's Report and Recommendation; and denying Petitioner for Writ of Habeas Corpus in its entirety. Signed by Judge John A. Houston on 09/08/11. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID CONNERS RUST,
Petitioner,

v.

MATTHEW CATE, Secretary of the
California Department of Corrections
and Rehabilitation,

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Respondent.

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Civil No. 3:08-cv-2404-JAH (CAB)
ORDER OVERRULING
PETITIONER’S OBJECTIONS;
ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION; AND
DENYING PETITION FOR WRIT
OF HABEAS CORPUS

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INTRODUCTION

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Petitioner David Conners Rust (“Petitioner”) is a California state prisoner

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proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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The Honorable Cathy Ann Bencivengo, United States Magistrate Judge, has issued a

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report and recommendation (“the Report”) recommending that this Court deny the

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petition in its entirety. After careful consideration of the pleadings and relevant exhibits

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submitted by the parties, and for the reasons set forth below, this Court OVERRULES

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Petitioner’s objections, ADOPTS the Report, and DENIES the petition for writ of habeas

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corpus.

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BACKGROUND

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In a twelve-count information filed in the San Diego County Superior Court on

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June 17, 2005, Petitioner was charged with two counts of lewd and lascivious conduct

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with a child under the age of fourteen (Cal. Pen. Code § 288(a)) (Counts 1 and 2), and

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ten counts of misdemeanor possession of child pornography (Cal. Pen. Code § 311.11(a))

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(Counts 3 through 12). (Lodgment 1 at 1-4.) It was also alleged that Petitioner had

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previously been convicted of discharging a firearm at a dwelling or occupied vehicle (Cal.

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Pen. Code §§ 246 and 12022.5), which constituted a serious felony prior and a strike prior

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(Cal. Pen. Code §§ 667(a)(1) and (b)-(i), 1170.12). (Lodgment 1 at 5.)

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On November 8, 2005, Petitioner pleaded guilty to the child pornography charges

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(Counts 3 through 12) and admitted the prior conviction allegations. (Lodgment 1 at

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80-82, 276-278; Lodgment 2 at 41-44, 45-49.)

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On November 10, 2005, a jury found Petitioner guilty of both counts of lewd and

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lascivious conduct with a child under the age of fourteen. (Lodgment 1 at 155-56;

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Lodgment 2, vol. 4 at 363-365.)

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On February 22, 2006, the trial court sentenced Petitioner to state prison for a total

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determinate term of twenty-five years, consisting of a term of sixteen years on Count 1,

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plus a consecutive term of four years on Count 2, plus a consecutive term of five years for

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the serious felony prior conviction. (Lodgment 1, Vol. 2 at 258; Lodgment 2, vol. 5 at

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401-404.)

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On January 11, 2007, Petitioner filed a direct appeal, raising all of the issues raised

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in this habeas petition. (Lodgments 3 and 4.) On January 4, 2008, the California Court

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of Appeals, in a reasoned opinion, rejected his appeal. (Lodgment 7 – People v. Rust, No.

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D048169, slip op. (Jan. 4, 2008).)

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California Supreme Court. (Dkt. No. 1 at 2.) On March 20, 2008, the California

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Supreme Court summarily denied Petitioner’s petition for review. (Lodgment 8.)

Petitioner filed a petition for review with the

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On December 24, 2008, Petitioner filed the instant petition, asserting identical

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claims to those asserted in his state court appeals. (Dkt. No. 1.) On April 10, 2009,

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Respondent filed an answer to the petition and, on January 6, 2010, Petitioner filed his

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traverse. (Dkt. Nos. 8 & 11.) On February 1, 2010, the magistrate judge issued the

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Report. (Dkt. No. 12.) Petitioner filed objections to the Report on March 5, 2010. (Dkt.
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No. 13.) Respondent did not reply.
DISCUSSION

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I.

Legal Standard

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The district court’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate [judge].” Id. The party objecting to the

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magistrate judge’s findings and recommendation bears the responsibility of specifically

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setting forth which of the magistrate judge’s findings the party contests. See Fed. R. Civ.

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P. 72(b). It is well settled, under Rule 72(b), that a district court may adopt those parts

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of a magistrate judge’s report to which no specific objection is made, provided they are not

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clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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II.

Analysis

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This Court received Petitioner’s objections to the Report and conducted a de novo

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review, independently reviewing the Report and all relevant papers submitted by both

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parties. In his petition, Petitioner presented five grounds for relief: (1) the state trial

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court erred in admitting evidence of the details of Petitioner’s misdemeanor child

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pornography counts to which he pleaded guilty before trial; (2) the state trial court erred

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in admitting evidence of Petitioner’s alleged sexual misconduct with his daughter

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approximately ten years before the present case; (3) the state trial court erred in refusing

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to give the jury instructions regarding the lesser included offense of battery; (4) the state

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trial court erred in imposing two punishments for one incident and in imposing those

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sentences consecutively; and (5) the state trial court’s imposition of an upper term

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sentence violated his right to a jury trial under the Sixth Amendment. (Dkt. No. 1 at

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6-10.) In a twenty-five page document, the magistrate judge thoroughly addressed each

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of Petitioner’s claims and recommended that each be denied in its entirety.

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Petitioner’s objections to the magistrate judge’s Report are general in nature in that
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they fail to specify any particular finding of fact or conclusion of law to which Petitioner

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objects. Petitioner’s objections may be summarized as an exposition of Petitioner’s

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contention that the penalties required by California’s three strikes law “cry out for

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modification or abolition to bring some measure of justice to its imposition.” (Dkt. No.

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13 at 3.) At most, Petitioner objects “to all grounds of support for dismissal of my writ

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of Habeas Corpus as untrue, unjust and contrary to the spirit of equitable and just

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punishment that fits the crime.” (Id. at 5. (emphasis added).) In sum, Petitioner has

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failed to object to any specific finding of fact or conclusion of law in the Report.

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This Court finds that the findings of fact contained in the Report are supported by

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the record in this case. This Court further finds that the Report sets forth a cogent legal

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analysis of the issues presented in the petition, answer, and traverse, such that this Court

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finds the Report is not clearly erroneous. As such, this Court agrees with the magistrate

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judge’s analysis in its entirety.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Petitioner’s objections are OVERRULED in their entirety;

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2.

The Report is ADOPTED in full;

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3.

The instant petition is DENIED in its entirety; and

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4.

The Clerk of Court shall enter judgment accordingly.

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Dated: September 8, 2011

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JOHN A. HOUSTON
United States District Judge

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