Newson v. Yates et al

Filing 58

ORDER: The Report and Recommendation (Doc. 52 ) issued by the Magistrate Judge is adopted in its entirety, except for the sentence on page 29, line 24-25, which is amended to read as follows: "Accordingly, the Court finds claims (2), (3), (4), and (6) not procedurally barred from review in federal court." The Petition for Writ of Habeas Corpus filed by Petitioner Raymond Newson is DENIED. (Doc. 1 ). A certificate of appealability is denied. Signed by Judge William Q. Hayes on 8/8/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

RAYMOND NEWSON,
Petitioner,

10

CASE NO. 10cv0746 WQH (MDD)

vs.
ORDER

11
12

EDMUND G. BROWN, JR., Attorney
General for the State of California,

13
14
15
16
17

Respondent.
HAYES, Judge:
The matter before the Court is the Report and Recommendation issued by the
Magistrate Judge recommending that the Petition for Writ of Habeas Corpus filed by Petitioner
Raymond Newson be denied. (ECF No. 52).

18
19
20
21
22
23
24
25
26
27
28

BACKGROUND
On December 19, 2006, Petitioner Raymond Newson was convicted by a jury in San
Diego County Superior Court of selling, transporting, and possessing controlled substances
with priors. (ECF No. 1 at 1-2).
On April 8, 2010, Petitioner filed a Petition for Writ of Habeas Corpus in this Court
asserting six grounds for relief stemming from his 2006 conviction. (ECF No. 1). Petitioner
contends that (1) the evidence presented at his trial was insufficient to support his conviction,
(2) prejudicial and improper tactics by the prosecution tainted Petitioner’s jury, (3) Petitioner’s
conviction was based on the prejudicial hearsay of a witness who was not available for crossexamination and his right of confrontation was denied, (4) Petitioner suffered ineffective
assistance of trial counsel because his trial counsel failed to file a Pitchess motion or subpoena
-1-

10cv0746 WQH (MDD)

1

Petitioner’s co-defendant for examination regarding her out of court statements, (5) Petitioner

2

suffered ineffective assistance of trial counsel because his trial counsel failed to request a

3

hearing under California Evidence Code § 402, and (6) Petitioner suffered ineffective

4

assistance of appellate counsel because his trial counsel failed to raise arguable issues on

5

appeal and inform Petitioner concerning the appellate court’s decision on direct appeal. On

6

June 2, 2011, Respondent filed an Answer. (ECF No. 31). On September 12, 2011, Petitioner

7

filed a Traverse. (ECF No. 49).

8

On April 18, 2012, the Magistrate Judge issued a Report and Recommendation

9

recommending that the Petition for Writ of Habeas Corpus be denied. (ECF No. 52). On May

10

23, 2012, Petitioner filed objections to the Report and Recommendation that copied the

11

arguments Petitioner asserted in his Petition and Traverse. (ECF No. 56).

12

DISCUSSION

13

The duties of the district court in connection with a Report and Recommendation of a

14

Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §

15

636(b)(1). When a party objects to a Report and Recommendation, “[a] judge of the [district]

16

court shall make a de novo determination of those portions of the [Report and

17

Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). When no objections

18

are filed, the district court need not review the Report and Recommendation de novo. See

19

Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d

20

1114, 1121-22 (9th Cir. 2003) (en banc). A district court may “accept, reject, or modify, in

21

whole or in part, the findings or recommendations made by the magistrate judge.” Fed. R. Civ.

22

P. 72(b); see also 28 U.S.C. § 636(b)(1).

23

Recommendation and the record in its entirety.

This Court has reviewed the Report and

24

The Magistrate Judge correctly concluded that the claims raised by Petitioner on his

25

first Petition for Writ of Habeas Corpus to the Supreme Court of California, claims 1 and 5,

26

may be adjudicated on the merits. Id. at 6. The Magistrate Judge correctly concluded that the

27

claims raised by Petitioner in his second Petition to the Supreme Court of California, claims

28

2, 3, 4, and 6, are not procedurally barred and are entitled to adjudication on the merits. Id. at
-2-

10cv0746 WQH (MDD)

1

7-8.

2

The Magistrate Judge correctly concluded that sufficient evidence was presented at trial

3

to support Petitioner’s conviction. Id. at 17. The Magistrate Judge correctly concluded that

4

Petitioner failed to show that he was denied a fair trial as a result of prosecutorial misconduct.

5

Id. at 20. The Magistrate Judge correctly concluded that Petitioner failed to show that any

6

hearsay rule was violated or that Petitioner was denied his Sixth Amendment rights. Id. at 24.

7

The Magistrate Judge correctly concluded that Petitioner failed to show that the decision of

8

defense counsel to not compel discovery of the police officer’s personnel files violated

9

Strickland v. Washington, 466 U.S. 668 (1984). (ECF No. 52 at 26). The Magistrate Judge

10

correctly concluded that Petitioner failed to show that the decision of defense counsel to not

11

subpoena Petitioner’s co-defendant violated Strickland. Id. at 26-27. The Magistrate Judge

12

correctly concluded that Petitioner failed to show that the decision of defense counsel to not

13

file a motion for a hearing pursuant to Cal. Evid. Code § 402 violated Strickland. Id. at 28.

14

The Magistrate Judge correctly concluded that the claim related to ineffective assistance of

15

appellate counsel fails because all of the claims that Petitioner faults appellate counsel for not

16

raising on appeal fail on the merits. Id. at 29.

17

I.

Certificate of Appealability

18

A certificate of appealability must be obtained by a petitioner in order to pursue an

19

appeal from a final order in a Section 2254 habeas corpus proceeding. See 28 U.S.C. §

20

2253(c)(1)(A); Fed. R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing

21

Section 2254 Cases, “[t]he district court must issue or deny a certificate of appealability when

22

it enters a final order adverse to the applicant.” A certificate of appealability may issue “only

23

if the applicant has made a substantial showing of the denial of a constitutional right.” 28

24

U.S.C. § 2253(c)(2). It must appear that reasonable jurists could find the district court’s

25

assessment of the petitioner’s constitutional claims debatable or wrong. See Slack v.

26

McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes that jurists of reason could not

27

find it debatable whether this Court was correct in denying the Petition. The Court denies a

28

certificate of appealability.
-3-

10cv0746 WQH (MDD)

CONCLUSION

1
2

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 52) issued

3

by the Magistrate Judge is adopted in its entirety, except for the sentence on page 29, line 24-

4

25, which is amended to read as follows: “Accordingly, the Court finds claims (2), (3), (4), and

5

(6) not procedurally barred from review in federal court.” The Petition for Writ of Habeas

6

Corpus filed by Petitioner Raymond Newson is DENIED. (ECF No. 1). A certificate of

7

appealability is denied.

8

DATED: August 8, 2012

9
10

WILLIAM Q. HAYES
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

10cv0746 WQH (MDD)