Smith v. Small et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATION: (1) Overruling Petitioner's Objections; (2) Approving And Adopting 31 Report and Recommendation in its entirety; And (3) Denying Petition For Writ Of Habeas Corpus. Because reasonable jurists would not find the Court's assessment of the claims debatable or wrong, Court declines to issue a certificate of appealability. Signed by Judge Cynthia Bashant on 6/26/2014.(jah)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER DALE SMITH,

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Petitioner,

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v.

(2) APPROVING AND ADOPTING
REPORT AND
RECOMMENDATION; AND

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ORDER:
(1) OVERRULING PETITIONER’S
OBJECTIONS;

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Case No. 10-cv-2429-BAS(JLB)

LARRY SMALL, et al.,
Respondents.

(3) DENYING PETITION FOR
WRIT OF HABEAS CORPUS
[ECF No. 31]

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On November 24, 2010, Petitioner Christopher Dale Smith, a state prisoner

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represented by counsel, filed this Petition for Writ of Habeas Corpus under 28 U.S.C.

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§ 2254 seeking relief from an indeterminate 25-years-to-life and a determinate 24-year

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sentence. On December 20, 2006, following a second trial, a jury found Petitioner

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guilty of: (1) one count of forcible rape; (2) two counts of forcible oral copulation; (3)

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burglary of an inhabited dwelling while a person was in the residence; and (4) false
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imprisonment by violence or menace.1 On October 21, 2013, United States Magistrate

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Judge William McCurine, Jr. issued a Report and Recommendation (“Report”)

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recommending that this Court deny the petition in its entirety. (ECF No. 31.)

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Petitioner untimely filed objections requesting that his “late-filed traverse” be

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considered as objections to the report. (ECF No. 36.)
For the following reasons, the Court OVERRULES Petitioner’s objections,

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APPROVES and ADOPTS the report in its entirety, and DENIES the petition.

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I.

LEGAL STANDARD

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The Court reviews de novo those portions of the R&R to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate judge.” Id. But “[t]he

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statute [28 U.S.C. § 636(b)(1)(c)] makes it clear that the district judge must review the

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magistrate judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court

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had no obligation to review the magistrate judge’s report). “Neither the Constitution

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nor the statute requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328

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F.3d at 1121. This rule of law is well-established in the Ninth Circuit and this district.

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See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo

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review of a R & R is only required when an objection is made to the R & R.”); Nelson

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v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report

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in its entirety without review because neither party filed objections to the report despite

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the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D.

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Cal. 2004) (Benitez, J.).

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The first trial ended in a mistrial after the trial court found that the jury was deadlocked.
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II.

ANALYSIS2

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Petitioner asserts three claims in his petition: (1) the trial court denied

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Petitioner’s Sixth and Fourteenth Amendment rights to present a defense by excluding

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testimony from Dr. Joyce Adams, Nurse Cari Caruso, and Petitioner’s wife; (2)

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Petitioner’s due-process rights under the Fifth, Sixth, and Fourteenth Amendments

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were violated because the trial court’s purported multiple evidentiary errors rendered

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the trial fundamentally unfair; and (3) Petitioner was denied his Sixth Amendment right

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when his appellate counsel failed to raise on appeal the trial court’s exclusion of

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defense evidence and the resulting cumulative error.

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In a thorough and well-reasoned report, Judge McCurine found that all of

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Petitioner’s claims lacked merit and recommended that this Court deny the petition in

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its entirety. Rather than filing objections specifically addressing Judge McCurine’s

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findings and recommendations, Petitioner untimely filed objections requesting that his

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late-filed traverse to the petition be considered as objections to the report. Most of the

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arguments raised in the traverse, none of which specifically address Judge McCurine’s

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findings in the report, are issues that were already raised before in the memorandum of

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points and authorities in support of the petition, and thus, also addressed in the report.

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Respondents did not file a reply.

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A.

Procedural Effects of Untimely Objections / Late-Filed Traverse

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To begin, the Court reiterates and emphasizes the fact that Petitioner’s late-filed

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traverse does not specifically address any of Judge McCurine’s findings and

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recommendations in the report. Furthermore, Petitioner was given an extension of time

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to file his traverse—the traverse originally being due on September 3, 2013, and Judge

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McCurine extending that due date to October 17, 2013—but nonetheless failed to

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timely file his traverse despite being represented by counsel. By the time Petitioner

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The Court adopts and incorporates by reference all portions of the report that Petitioner does
not object to. That includes the factual background presented in the report.
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filed his traverse on November 11, 2013—almost one month after the due date—Judge

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McCurine had already issued the report. And though Judge McCurine permitted any

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objections to be filed by November 5, 2013, Petitioner failed to timely submit

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objections in response to the report. Instead, on December 31, 2013—almost two

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months after the objections were due—he filed a one-page document titled “Request

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that Late Filed Traverse Be Considered as Objections to the Report and

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Recommendation in this Case.” (ECF No. 36.) Petitioner’s counsel electronically filed

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this document as an objection to the report. (Id.)

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“[A] party may serve and file specific written objections to the proposed findings

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and recommendations” of a magistrate judge. Fed. R. Civ. P. 72(b) (emphasis added).

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In the absence of a timely objection, the Court “need only satisfy itself that there is no

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clear error on the face of the record in order to accept the recommendation.” Id.

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Advisory Comm. Notes (1983) (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206

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(9th Cir. 1973)).

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Numerous courts have held that a general objection to the entirety of a magistrate

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judge’s report has the same effect as a failure to object. Alcantara v. McEwen, No. 12-

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CV-401, 2013 WL 4517861, at *1 (S.D. Cal. Aug. 15, 2013) (Gonzalez, J.) (citing

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numerous cases). “Concerns about judicial economy and efficiency guided these

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courts’ decisions.” Id. at *2. For example, in Goney v. Clark, 749 F.2d 5, 7 (3d Cir.

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1984), the Third Circuit explained that “providing a complete de novo determination

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where only a general objection to the report is offered would undermine the efficiency

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the magistrate system was meant to contribute to the judicial process.” Similarly, the

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Ninth Circuit has emphasized that “the underlying purpose of the Federal Magistrates

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Act is to improve the effective administration of justice[.]” Reyna-Tapia, 328 F.3d at

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1122.

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By not filing objections that specifically address Judge McCurine’s findings and

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recommendations but rather incorporating the traverse as the objections, Petitioner

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leaves the Court with the difficult task of deciphering and extrapolating how the
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arguments presented in the traverse correspond to the findings and recommendations

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in the report in order to produce plausible objections.

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responsibility to the Court, which is what Petitioner effectively does, Petitioner

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produces a situation that undermines the efficiency of the magistrate system and

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judicial process. See Goney, 749 F.2d at 7. The Court is also left with the task of

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speculating how Petitioner may have intended his objections to be interpreted. That

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leaves the Court with the precarious responsibility of potentially providing additional

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legal research and developing analysis to bridge arguments meant to address

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Respondents’ response to the petition for the purposes of objecting to Judge

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By transferring that

McCurine’s report.

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The impropriety of the aforementioned tasks stems heavily from the fact that

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Petitioner is represented by counsel and not proceeding pro se. Though Petitioner’s

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counsel indicated in an earlier filing that the reason for filing the traverse late was

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because of illness, he nonetheless had time to prepare the traverse, and certainly had

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the opportunity to edit and redirect arguments in the traverse to the findings and

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recommendations in the report by December 31, 2013. It is also worth emphasizing

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that Petitioner’s counsel does not explain why the objections were untimely, or why he

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was unable to draft specific objections to the report.

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The ambiguities resulting from the incorporated objections / traverse lead this

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Court to conclude that Petitioner’s objections rise to the level of “general objections”

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that do not address the substance of any specific findings in the report, which in turn

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has the same effect as failing to object. See Alcantara, 2013 WL 4517861, at *1; see

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also Turner v. Tilton, 07-CV-2036, 2008 WL 5273526, at *1 (S.D. Cal. Dec. 18, 2008)

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(Sammartino, J.) (“[H]is objections do not address the substance of the R & R’s

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findings. Instead, the objections discuss at length the claims made in the petition.

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Thus, the Court finds that Petitioner has not made an objection to any specific portion

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of the report. Therefore, the Court need only satisfy itself that the R & R is not clearly

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erroneous.”). Furthermore, the fact that the objections were filed almost two months
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late without any explanation for the delay leads this Court to conclude that it may

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choose to not consider the objections at all. See Fed. R. Civ. P. 72(b) Advisory Comm.

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Notes (1983) (citing Campbell, 501 F.2d at 206).

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B.

Merits of Untimely Objections / Late-Filed Traverse

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Petitioner presents several arguments in his late-filed traverse, none of which

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specifically address Judge McCurine’s findings in the report: (1) Petitioner was denied

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his constitutional right to a meaningful defense by the trial court’s refusal to allow

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Petitioner’s experts to testify, where the refusal also had a “substantial and injurious

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effect” on the jury’s verdict; (2) the aforementioned testimony excluded was prejudicial

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and “exacerbated” Petitioner’s right to present a defense of consent; (3) allowing the

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admission of prior bad acts prejudiced Petitioner; (4) the combination of excluded

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witness testimony and the inclusion of the prior bad acts cumulatively deprived

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Petitioner of due process and a fair trial; and (5) the appointed appellate counsel was

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ineffective.

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As mentioned above, most of these arguments are issues that were previously

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raised in the memorandum of points and authorities in support of the petition, and thus,

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already addressed in the report. (Cf. ECF No. 1-1.) Though the Court need not address

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those arguments again, it nonetheless reviewed de novo the traverse as objections to

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Judge McCurine’s findings and recommendations in addition to the record as a whole.

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Upon completing that de novo review, the Court finds that Petitioner fails to present

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any justification to sustain his objections and reject or alter any portion of the report.

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III.

CONCLUSION & ORDER

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After considering Petitioner’s untimely objections / late-filed traverse and

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conducting a de novo review, the Court concludes that Judge McCurine’s reasoning in

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the report is sound. Alternatively, the Court overrules Petitioner’s objections based on

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the failure to timely file the objections, and the fact that the late-filed traverse fails to
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address any specific findings in the report. In light of the foregoing, the Court

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OVERRULES Petitioner’s objections (ECF No. 37), APPROVES and ADOPTS the

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report in its entirety (ECF No. 31), and DENIES the petition (ECF No. 1).

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Moreover, a certificate of appealability may issue only if the applicant makes a

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

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Petitioner has not made this showing. Because reasonable jurists would not find the

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Court’s assessment of the claims debatable or wrong, the Court DECLINES to issue

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a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.

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DATED: June 26, 2014

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Hon. Cynthia Bashant
United States District Judge

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