Booth v. Adams et al

Filing 14

ORDER (1) ADOPTING 13 REPORT AND RECOMMENDATION (2) Denying Petition for Habeas Corpus with Prejudice: The Court DENIES a certificate of appealability. The Clerk SHALL close the file. Signed by Judge Janis L. Sammartino on 9/2/11.(All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDWARD BOOTH,

CASE NO. 10CV2361 JLS (CAB)
Plaintiff,

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ORDER (1) ADOPTING REPORT
AND RECOMMENDATION (2)
DENYING PETITION FOR
HABEAS CORPUS WITH
PREJUDICE

vs.
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DARREL ADAMS, et al.,

(ECF Nos. 7 & 13.)

Defendant.

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Edward Booth filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

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November 15, 2010. (ECF No. 1.) He requests relief for a variety of reasons, including

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ineffective assistance of counsel during both trial and appeal, several abuses of discretion by the

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trial court on evidentiary issues, and deprivation of a fair trial because no African Americans were

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impaneled on his jury. Several months after filing his petition, Booth filed a motion for stay and

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abeyance so that he could exhaust unexhausted claims before the state courts. (ECF No. 7.)

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Magistrate Judge Bencivengo issued a Report and Recommendation on Booth’s motion to

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stay, recommending this Court deny the motion and sua sponte dismiss Booth’s petition with

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prejudice. (ECF No. 13.) Judge Bencivengo noted that dismissal was proper for two separate

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reasons: not only was Booth’s claim time barred, it was also procedurally defaulted under

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adequate and independent state law. (Id. at 10–16.) The R&R and Booth’s objection to the R&R

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are presently before the Court for review.

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10CV2361

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Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a

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district court’s duties regarding a magistrate judge’s report and recommendation. The district

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

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

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447

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U.S. 667, 673–76 (1980). In the absence of timely objection, however, the Court “need only

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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist.

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Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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Booth’s objections to the R&R do not discuss Judge Bencivengo’s finding that Booth’s

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habeas petition is time barred. (ECF No. 13 at 10–14.) This Court finds no clear error on the face

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of the record with regard to that finding and adopts it in its entirety. A merits consideration of

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Booth’s claims is time barred.

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Booth’s objections center around the procedural default issue instead. The Court finds it

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unnecessary to consider the objections, however, because they are moot. The time bar is sufficient

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on its own to deny Booth’s habeas petition. Accordingly, the Court hereby (1) ADOPTS

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Magistrate Judge Bencivengo’s report and recommendation with regard to the time bar and (2)

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DENIES WITH PREJUDICE Booth’s petition for habeas corpus.

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Finally, this Court is under an obligation to determine whether a certificate of appealability

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should issue in this matter. A certificate of appealability is authorized “if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner

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satisfies this standard by showing that “reasonable jurists” would debate the Court’s assessment of

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the constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where, as here, the

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petition is dismissed on procedural grounds, a certificate of appealability “should issue when the

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petitioner shows, at least, [1] that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Id.

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10CV2361

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The Court finds that reasonable jurists would agree with this Court’s resolution of

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Plaintiff’s claims. The record provides adequate basis for finding that Booth’s habeas petition is

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time barred. The Court DENIES a certificate of appealability as a result. The Clerk SHALL

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close the file.

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IT IS SO ORDERED.

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DATED: September 2, 2011
Honorable Janis L. Sammartino
United States District Judge

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10CV2361