Saibu v. McEwen

Filing 22

ORDER: (1) Adopting 15 Report and Recommendation, (2) Denying Petition for Writ of Habeas Corpus, and (3) Denying Certificate of Appealability. Signed by Judge Roger T. Benitez on 5/8/2014.(All non-registered users served via U.S. Mail Service)(knb)

1

14 HAY - 9 AM 9: .. I

2
3

4
OE?Ul Y

5

6

7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SADIQ SAIBU,
Petitioner,

12

13

CASE NO. 12-CV-1564 BEN (MDD)
ORDER:
(1) ADOPTING REPORT AND
RtCOMMENDATION

vs.

14

(2) DENYING PETITION FOR
WRIT OF HABEAS CORPUS

15
16
17

L.S. McEWEN, Warden,

(3) DENYING CERTIFICATE OF
APPEALABILITY

Respondent.

[Docket No. 15]

18
19

Petitioner Sadiq Saibu, a state prisoner proceeding pro se, filed the instant

20

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No.1.)

21

Respondent filed a Response on October 25, 2012. (Docket No. 11.) Petitioner filed

22

a traverse on December 6,2012. (Docket No. 14.)

23

Magistrate Judge Mitchell D. Dembin issued a thoughtful and thorough Report

24

and Recommendation recommending that the Petition be denied. (Docket No. 15.)

25

Petitioner filed an Objection to the Report and Recommendation. (Docket No. 16.) In

26

addition, Petitioner submitted a Supplemental Submission of the Declaration of

Antonio Valentino and Request for an Evidentiary Hearing. (Docket No. 21.)
28 /1/
27

- 1-

12cv1564

1

I.

2

A district judge ''may accept, reject, or modify the recommended disposition" of

REpORT AND RECOMMENDATION

3 a magistrate judge on a dispositive matter. FED. R. CIY. P. 72(b )(3); see also 28 U.S.C.
4

§ 636(b)(1). The court "shall make a de novo determination of those portions of the

5 report ... to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also United
6 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
7

It is well-established that a party objecting to a Report and Recommendation

8

must cite specific instances of error in the Report and Recommendation. See FED. R.

9

CIY.P. 72(b)(2); UnitedStatesv. Midgette,478F.3d616,621 (4thCir.2007)("Section

10

636(b)(1) does not countenance a form of generalized objection to cover all issues

11

addressed by the magistrate judge; it contemplates that a party's objection to a

12

magistratejudge's report be specific and particularized, as the statute directs the district

13

court to review only those portions of the report or specified proposed findings or

14

recommendations to which objection is made." (internal citations and quotations

15

omitted)). As the Fourth Circuit stated,

16
17

18
19

20
21

22

[Alp~ must object to the finding or recommendation on that issue with
sufficient specificity so as reasomlbly to alert the district court ofthe true
ground for the objection. . .. To conclude otherwise would defeat the
purpose of requirmg objections. We would be Rermitting a party to
appeal any issue thaI was before the magistrate juoge, regardless of the
nature ana scope of objections made to the magistrate Judge's report.
Either the distrIct court would then have to reVIew every Issue in the
magistrate judge's proposed findings and recommendations or courts of
appeals woulobe reqUIred to review issues that the district court never
considered. In either case, judicial resources would be wasted and the
district coU:rt's effectiveness based on help from magistrate judges would
be undermmed.

23

24

Midgette, 478 F.3d at 622; see also FED. R. CIY. P. 72(b)(2) (requiring objecting party

25

to file "specific written objections to the proposed findings and recommendations").

26

In his Objection, Petitioner argues: (1) the California Court of Appeal should

27

have applied the standard ofreview set forth in Chapman v. California, 386 u.s. 18,

28

24 (1967), when determining whether evidence of Petitioner's prior bank robbery
- 2-

12cv1564

1

conviction should have been admitted; (2) the recording ofNaz Almajid' s conversation

2

with the police was improperly admitted as highly probative and not hearsay; (3) the

3

California Court ofAppeal incorrectly concluded that there was sufficient evidence to

4 prove that Petitioner could have known that the shooting would occur as a natural and
5

probable consequence of the robbery; and (4) the cumulative effect of the asserted

6

evidentiary errors violated his right to due process. Petitioner has already presented

7

these arguments to Judge Dembin in his Petition and Traverse. The Report and

8 Recommendation thoroughly discusses, and correctly rejects, all of these arguments.
9

Because the Petitioner's Objection simply reiterates the arguments he previously

10

presented to Judge Dembin and fails to point to any specific instance of error in the

11

Report and Recommendation, the Court overrules Plaintiffs Objection. The Court

12

fully ADOPTS Judge Dembin's Report and Recommendation. Petitioner's Petition is

13 DENIED.
14

II.

15

Petitioner submits a Supplemental Declaration by Antonio Valentino. Valentino

16

testifies that "Mr. Sadiq Saibu did not in any way plan, encourage or promote me or

17

anyone to my knowledge to committ [sic] the crime on July 13,2005. Furthermore,

18

Mr. Saibu did not provide me or anyone to my knowledge with a Silver or Black

19

revolver on or before July 13,2005." (Docket No. 21, at 4.) Petitioner requests that

20

an evidentiary hearing be held.

REQUEST FOR AN EVIDENTIARY HEARING

21

"[R]eview under § 2254(d)(1) is limited to the record that was before the state

22

court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. 1388,

23

1398 (2011).

Petitioner claims that he was "only recently able to obtain the

24 aforementioned Declaration." (Docket No. 21, at 1.) In addition, Valentino testifies
25

that he "ha[s] not spoken ofor revealed this information before this time because ofthe

26

state of [his] Appeal." (Id. at 4.) Because this evidence was not before the state court

27

at the time it adjudicated the claims on the merits, this Court may not consider the

28 Declaration. Accordingly, the request for an evidentiary hearing is DENIED.
-3-

12cv1564

1

III.

2

"Unless a circuit justice or judge issues a certificate of appealability, an appeal

3

may not be taken to the court of appeals from ... the final order in a habeas corpus

4

proceeding in which the detention complained ofarises out ofprocess issued by a State

5

court." 28 U.S.C. § 2253(c)(l)(A). A certificate of appealability is authorized "only

6

ifthe applicant has made a substantial showing ofthe denial of a constitutional right."

7

28 U.S.C. § 2253(c)(2). To meet this standard, a petitioner must show "that jurists of

8

reason could disagree with the district court's resolution ofhis constitutional claims or

9

that jurists could conclude the issues presented are adequate to deserve encouragement

10

to proceed further." Miller-EI v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.

11

McDaniel, 529 U.S. 473,484 (2000)).

CERTIFICATE OF APPEALABILITY

12

Here, the Court concludes that the claims raised in the Petition are not such that

13

''jurists of reason could disagree with the district court's resolution" of them, nor are

14

they sufficiently adequate "to deserve encouragement to proceed further." See id.

15

Accordingly, the Court DENIES a certificate of appealability.

16

IT IS SO ORDERED.

17

J

18

/

DATED: May;:-' 2014

. BENITEZ
nited States District Court Judge

19

20
21

22
23

24
25

26
27

28

-4-

12cv1564