Harvey v. Gonzales et al
Filing
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ORDER adopting 8 the Magistrate Judge's Report and Recommendation and Denying 1 Petition for Writ of Habeas Corpus. Signed by Judge John A. Houston on 6/4/12. (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 ALONZO HARVEY,
v.
Petitioner,
F. GONZALES, et al.,
Respondents.
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Civil No. 10cv2235 JAH(RBB)
ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND
DENYING PETITION FOR WRIT
OF HABEAS CORPUS
[28 U.S.C. § 2254]
INTRODUCTION
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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Respondent filed an answer to the petition and
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petitioner filed a traverse. Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Ruben B.
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Brooks, United States Magistrate Judge, submitted a report and recommendation
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(“report”) to this Court recommending the instant petition be denied with prejudice.
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Objections to the report were due by March 16, 2012, but neither party filed objections.
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After careful consideration of the pleadings and relevant exhibits submitted by the parties,
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and for the reasons set forth below, this Court ADOPTS the magistrate judge’s report in
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its entirety and DENIES the instant petition in its entirety.
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10cv2235
BACKGROUND1
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On November 21, 2009, petitioner was found guilty, after a jury trial, of
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premeditated attempted murder, kidnapping for robbery, and attempted robbery.
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Petitioner was subsequently sentenced to two life terms with the possibility of parole, plus
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fifty years to life, and five years. Petitioner appealed his conviction on January 20, 2009.
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The California Court of Appeal upheld petitioner’s kidnapping for robbery and attempted
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robbery convictions but reversed his attempted murder conviction based on an erroneous
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jury instruction.
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Petitioner appealed to the California Supreme Court on October 29, 2009,
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challenging the sufficiency of the evidence to convict him of aggravated kidnapping for
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robbery based on the instruction given to the jury. The California Supreme Court denied
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review without opinion on December 2, 2009. On October 27, 2010, petitioner filed the
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instant petition. Respondents filed an answer to the petition on January 5, 2011 and
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petitioner filed his traverse on February 17, 2011. The magistrate judge’s report was filed
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on February 16, 2012. No objections to the report were filed by either party.
DISCUSSION
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1.
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 district
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court “shall make a de novo determination of those portions of the report . . . to which
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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings
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or recommendations made by the magistrate [judge].” Id. When no objections are filed,
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the Court may assume the correctness of the magistrate judge’s findings of fact and decide
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the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196,
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206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).
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Under such circumstances, the Ninth Circuit has held that “a failure to file objections only
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The underlying facts set forth in the report are adopted in toto, and referenced as if fully set forth
herein. This Court provides only a brief procedural background.
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10cv2235
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relieves the trial court of its burden to give de novo review to factual findings; conclusions
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of law must still be reviewed de novo.” Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.
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1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
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2.
Analysis
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The Court received no objections to the report and no request for an extension of
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time in which to file any objections. As such, the Court assumes the correctness of the
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magistrate judge’s factual findings and adopts them in full. The Court has conducted a
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de novo review, independently reviewing the report and all relevant papers submitted by
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both parties, and finds that the report provides a cogent analysis of the claims presented
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in the instant petition.
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Specifically, this Court first agrees with the magistrate judge that Warden Gonzales
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is a proper respondent but former Attorney General Edmund G. Brown is not a proper
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respondent and should be dismissed.
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judge’s determination that petitioner’s first ground for relief has not been fully exhausted
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in state court but should, nevertheless, be addressed on the merits. Based on a thorough
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de novo review of the record, this Court agrees with the magistrate judge’s finding that the
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trial court did not err when it allowed the introduction of evidence regarding petitioner’s
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parole status because it was not objectively unreasonable and thus not violative of due
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process. This Court further agrees that petitioner has not demonstrated the trial court’s
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failure to give a limiting instruction and tell the jury not to draw any inference from the
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references to petitioner’s parole status rendered the entire trial fundamentally unfair
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because his parole status was not admitted to prove he had the propensity to commit the
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current crime and the court did not allow the prosecutor to discuss the prior conviction
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which led to petitioner’s parole. Thus, this Court agrees with the magistrate judge that the
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state court’s rejection of petitioner’s evidentiary error claim contained in ground one was
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not contrary to, or an unreasonable application of, clearly established federal law and was
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not based on an unreasonable determination of the facts.
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Second, this Court agrees with the magistrate
Third, this Court agrees with the magistrate judge’s findings and conclusion
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10cv2235
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concerning petitioner’s second ground for relief based on the contention that there was
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insufficient evidence to support his conviction for kidnapping for robbery. This Court’s
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de novo review of the record reflects the magistrate judge correctly determined that the
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evidence supports a finding that the kidnapping began upon petitioner’s brandishing a
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weapon, demanding money and threatening the victim and that the victim’s continuing
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movement was due to fear and the implied threat to keep moving. This Court agrees with
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the magistrate judge that a reasonable person would not feel free to stop or deviate from
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the original course after petitioner brandished his weapon and made the threat. Thus,
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viewing the evidence in the light most favorable to the prosecution, this Court agrees that
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a rational trier of fact would have found petitioner guilty beyond a reasonable doubt of
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kidnapping for robbery.
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Lastly, this Court, after a thorough de novo review of the record, agrees with the
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finding that the state court’s rejection of petitioner’s claim regarding his conviction being
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based on the victim’s failure to consent to her movement at the complex was not contrary
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to, or an unreasonable application of clearly established Supreme Court law.
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Accordingly, this Court ADOPTS the magistrate judge’s report in full and DENIES
the instant petition in its entirety.
CONCLUSION AND ORDER
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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1.
The findings and conclusions of the magistrate judge presented in the Report
and Recommendation are ADOPTED in their entirety;
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2.
The instant petition is DENIED with prejudice in its entirety.
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3.
The Clerk of Court shall enter judgment in accordance with this Order.
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Dated:
June 4, 2012
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JOHN A. HOUSTON
United States District Judge
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10cv2235
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