McGowan v. Bitter

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION 18 . The objections to the R&R are overruled. The petition is denied. Certificate of Appealability is also denied. Signed by Judge Larry Alan Burns on 6/11/13. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WEUSI MARRUFU McGOWAN,

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CASE NO. 11CV1620-LAB (PCL)

Petitioner,

ORDER OVERRULING
OBJECTIONS TO REPORT AND
RECOMMENDATION; AND

vs.
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M.D. BITTER,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Respondent.

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Petitioner Weusi Marrufu McGowan, a prisoner in state custody, filed his petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636, the

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petition was referred to Magistrate Judge Peter Lewis for report and recommendation. On

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April 30, 2012, Judge Lewis issued his report and recommendation (the “R&R”), which

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recommended denying the petition. After an extension of time to file objections, McGowan

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filed his objections (Docket no. 21). He then submitted additional documentation (Docket no.

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23), which the Court accepted as a supplement to his objections. The supplemental

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materials consist of medical records showing that during 2008 and 2009, he was prescribed

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certain medications, apparently to treat both psychiatric and physical problems.1

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As of June, 2009, when he pleaded guilty, the records show he was prescribed
Lithobid (lithium), Seroquel (an antidepressant), a beta-blocker, a diuretic, and aspirin. The
records don’t show whether he was actually taking those medications nor do they reflect any
side effects or unexpected reactions such as he now alleges.
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11CV1620

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A district court has jurisdiction to review a magistrate judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must

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determine de novo any part of the magistrate judge's disposition that has been properly

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objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The

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Court reviews de novo those portions of the R&R to which specific written objection is made.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute

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makes it clear that the district judge must review the magistrate judge's findings and

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recommendations de novo if objection is made, but not otherwise." Id.

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Although McGowan filed objections, he didn’t object to most of the R&R, including its

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factual recitations. The Court therefore ADOPTS them and does not recite them again here.

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As for McGowan’s legal arguments, the R&R concluded “it is perfectly clear that Petitioner

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does not raise even a colorable federal claim in his Petition.” (R&R, 5:9–10.) The R&R notes

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that, although McGowan argues it was error for the state court to sentence him without

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submitting certain factual issues to the jury, McGowan waived the right to jury trial in his plea

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agreement, and when he pleaded guilty. Although McGowan’s objections repeat the R&R’s

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recommended rulings, he doesn’t challenge them or attempt to show the rulings are wrong

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in any way. Instead, he raises a completely new objection, i.e., that he was experiencing an

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unexpected reaction to medication that caused him not to know what he was doing on the

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day he pleaded guilty. If this claim were valid and he were entitled to relief, the proper

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remedy would not be vacatur of McGowan’s sentence and remand for resentencing, which

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is the remedy he seeks; rather, he would be entitled to withdraw his guilty plea and go to

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trial. He is not, however, entitled to any relief.

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This new claim was never raised before the state court and is therefore unexhausted.

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(See Lodgments 2 (petition to California Superior Court), 4 (petition to California Court of

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Appeal), and 6 (petition to California Supreme Court).) For this reason alone, the objection

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must be overruled. See 28 U.S.C. § 2254(b)(1) (requiring exhaustion). McGowan never

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sought to withdraw his plea, and has questioned its voluntariness until now. In fact, the issue
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11CV1620

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was not even raised in the petition filed in this Court. Furthermore, it is contradicted by

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evidence presented in the state court, and by the trial court’s factual findings.

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At McGowan’s plea hearing, McGowan stated (under penalty of perjury) that he was

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entering his plea freely and voluntarily (Lodgment 1 at 59 (“I am entering my plea freely and

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voluntarily . . . .”); and that his judgment was unimpaired (Id. ( “I am sober and my judgment

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is not impaired. I have not consumed any drug, alcohol or narcotic within the past 24 hours.”)

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Each statement was initialed by him and made under penalty of perjury. (See id. at 61

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(declaration under penalty of perjury).) The state court made the factual finding that

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McGowan understood and was voluntarily waiving his constitutional rights, and that his plea

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and admissions were freely and voluntarily made. (Id.) These statements (which he made

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on June 19, 2009 and which his counsel verified the same day) and findings (which the trial

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court made on June 22, 2009) were not unreasonable and are not rebutted by the thin

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evidence he now presents. See 28 U.S.C. § 2254(e)(1) (state court’s factual determination

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presumed correct, and petitioner bears burden of rebutting presumption by clear and

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convincing evidence). Even if McGowan had exhausted this issue and raised it in his petition

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to this Court, it would be rejected as meritless.

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McGowan’s objections to the R&R are therefore OVERRULED. The Court has

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reviewed the R&R, finds it to be correct, and ADOPTS it. The petition is DENIED. Because

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jurists of reason would not find this decision debatable, see Slack v. McDaniel, 529 U.S. 473,

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484 (2000), the certificate of appealability is also DENIED.

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IT IS SO ORDERED.
DATED: June 11, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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