Al Khafaji v. Paramo et al

Filing 25

ORDER: The Report and Recommendation is adopted in its entirety. (Doc. 24 ). The Petition for Writ of Habeas Corpus is denied. (Doc. 1 ). A certificate of appealability is denied. The Clerk of the Court shall close this case. Signed by Judge William Q. Hayes on 1/9/2014. (All non-registered users served via U.S. Mail Service - mailed to docket address: RJ Donovan Correctional Facility, 480 Alta Rd., San Diego, CA 92179.) (mdc)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 HAYDAR T. AL KHAFAJI, CASE NO. 12cv2850-WQH-PCL ORDER 11 Petitioner, vs. DANIEL PARAMO, Warden, 12 Respondent. 10 13 HAYES, Judge: 14 The matter before the Court is the review of the Report and Recommendation 15 (ECF No. 24) issued by United States Magistrate Judge Peter C. Lewis, recommending 16 that this Court deny Petitioner Haydar T. Al Khafaji’s Petition for Writ of Habeas 17 Corpus (ECF No. 1). 18 I. Background 19 On May 7, 2010, a jury in San Diego Superior Court convicted Petitioner of 20 kidnaping for rape, assault with intent to commit rape, and robbery. (Lodgment 1 at 7321 75). The trial court sentenced Petitioner to an indeterminate life term with the 22 possibility of parole, plus a consecutive three-year determinate term in state prison. Id. 23 at 77. On June 9, 2011, the California Court of Appeal affirmed Petitioner’s conviction, 24 and on August 24, 2011, the California Supreme Court denied Petitioner’s petition for 25 review. (Lodgment 7; Lodgment 9). On January 3, 2013, the California Supreme Court 26 denied Petitioner’s petition for writ of habeas corpus. (Lodgment 11). 27 On November 28, 2012, Petitioner, proceeding pro se, filed a Petition for Writ 28 of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. -1- 12cv2850-WQH-PCL 1 1). Petitioner asserts the following claims: (1) Petitioner’s right to due process under 2 the Fourteenth Amendment was violated because there was insufficient evidence to 3 support his conviction for kidnaping for rape; (2) the trial court erred by failing to 4 instruct the jury on the lesser included offense of simple kidnaping; and (3) trial counsel 5 was ineffective during the sentencing hearing. 6 On February 19, 2013, Respondent filed an answer to the Petition. (ECF No. 10). 7 On June 11, 2013, Petitioner filed a traverse. (ECF No. 19). 8 On December 10, 2013, the Magistrate Judge issued the Report and 9 Recommendation, recommending that the Petition be denied in its entirety. (ECF No. 10 24). The Report and Recommendation concludes: “IT IS ORDERED that no later than 11 December 24, 2013, any party to this action may file written objections with the Court 12 and serve a copy on all parties.... The parties are advised that failure to file objections 13 within the specified time may waive the right to raise those objections on appeal of the 14 Court’s order.” Id. at 11 (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 15 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991)). 16 The docket reflects that neither party filed objections to the Report and 17 Recommendation. 18 II. Review of the Report and Recommendation 19 The duties of the district court in connection with a report and recommendation 20 of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 21 U.S.C. § 636(b)(1). When a party objects to a report and recommendation, “[a] judge 22 of the [district] court shall make a de novo determination of those portions of the [report 23 and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). When no 24 objections are filed, the district court need not review the report and recommendation 25 de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en 26 banc). A district court may “accept, reject, or modify, in whole or in part, the findings 27 or recommendations made by the magistrate judge.” Fed. R. Civ. P. 72(b); see also 28 28 U.S.C. § 636(b)(1). -2- 12cv2850-WQH-PCL 1 Neither party objected to the Report and Recommendation, and the Court has 2 reviewed the Report and Recommendation in its entirety. The Court finds that 3 Petitioner has failed to demonstrate that he is entitled to relief pursuant to 28 U.S.C. § 4 2254(d). The Court concludes that the Magistrate Judge correctly determined that the 5 Petition should be denied. The Court adopts the Report and Recommendation in its 6 entirety. 7 III. Certificate of Appealability 8 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, “[t]he 9 district court must issue or deny a certificate of appealability when it enters a final order 10 adverse to the applicant.” A certificate of appealability should be issued only where the 11 petition presents “a substantial showing of the denial of a constitutional right.” 28 12 U.S.C. § 2253(c)(2). “[A] [certificate of appealability] should issue when the prisoner 13 shows ... that jurists of reason would find it debatable whether the petition states a valid 14 claim of the denial of a constitutional right and that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling.” Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). 17 The Court concludes that jurists of reason would not find it debatable whether 18 this Court was correct in denying the Petition. The Court denies a certificate of 19 appealability. 20 IV. Conclusion 21 IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED 22 in its entirety. (ECF No. 24). The Petition for Writ of Habeas Corpus is DENIED. 23 (ECF No. 1). A certificate of appealability is DENIED. The Clerk of the Court shall 24 close this case. 25 DATED: January 9, 2014 26 27 WILLIAM Q. HAYES United States District Judge 28 -3- 12cv2850-WQH-PCL

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