Rodriguez v. Hill et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION 12 , overruling Petitioner's objections, and denying the petition. A Certificate of Appealability is also denied. Signed by Judge Larry Alan Burns on 1/22/15. (All non-registered users served via U.S. Mail Service)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILDARDO RODRIGUEZ, 12 CASE NO. 13cv1191-LAB (DHB) Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION; AND vs. 13 14 15 ORDER DENYING HABEAS PETITION RICK HILL, et al., Defendant. 16 Petitioner Gildardo Rodriguez, a prisoner in state custody, filed his petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636 and Fed. R. Civ. 18 P. 72, this matter was referred to Magistrate Judge David Bartick for report and 19 recommendation. On July 7, 2014, Judge Bartick issued his report and recommendation 20 (the “R&R”), which recommended denying Rodriguez’s request for an evidentiary hearing 21 and denying the petition. Rodriguez, after two extensions of time, filed his objections. 22 A district court has jurisdiction to review a Magistrate Judge's report and 23 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must 24 determine de novo any part of the magistrate judge's disposition that has been properly 25 objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the 26 findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This 27 section does not require some lesser review by the district court when no objections are filed. 28 Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The "statute makes it clear that the district -1- 13cv1191 1 judge must review the magistrate judge's findings and recommendations de novo if objection 2 is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 3 2003) (en banc) (emphasis in original). 4 The federal rules require specific written objections; generalized or blanket objections 5 do not trigger the de novo review requirement. See Bridgeman v. Stainer, 2014 WL 6 1806919, at *1 (S.D.Cal., May 7, 2014) (citing Fed. R. Civ. P. 72(b)(2); United States v. 7 Midgette, 478 F.3d 616, 621 (4th Cir. 2007)); Marsden v. Moore, 847 F.2d 1536, 1548 (11th 8 Cir. 1988) (“Frivolous, conclusive, or general objections [to a magistrate judge’s report and 9 recommendation] need not be considered by the district court.”). Objections that would not 10 alter the outcome are moot, and can be overruled on that basis alone. Haraszewski v. 11 Brannan, 2013 WL 4516776, at *2 (S.D.Cal., Aug. 21, 2013 (citing DeFunis v. Odegaard, 12 416 U.S. 312, 316 (1974)). 13 Although Rodriguez filed lengthy objections, the bulk of the document is merely a 14 discussion of habeas standards which do not differ in any significant way from the standards 15 Judge Bartick applied in the R&R. Many of the standards do not even have any application 16 to this case such as the standards governing actual innocence claims (Obj. to R&R at 2:2- 17 18), substantive due process claims (id. at 2:20–3:26), and denial of parole (id. at 4:10–5:8). 18 A great deal of the remainder is taken up with a discussion of fundamental fairness, as well 19 as the history of the writ and development of various doctrines concerning its issuance. The 20 only portions of the objections with any real bearing on this case are a discussion of 21 procedural default (id. at 8:27–9:26) and jury instructions (id. at 13:4–15:25.) The procedural 22 default discussion mentions the “cause and prejudice” standard, but identifies no error in the 23 R&R. The jury instruction discussion merely points out and discusses at length the familiar 24 principle that the jury instructions may not be so defective as to permit a conviction on less 25 than proof beyond a reasonable doubt. Although the objections conclude “Petitioner does 26 not agree that the Magistrate Judge’s opinion is a correct statement of the facts and the laws 27 of Our Country,” (id. at 15:26–27), the standards set forth in the objections that relate to 28 habeas review are the same as those applied in the R&R. -2- 13cv1191 1 The Court therefore holds that the objections Rodriguez filed do not trigger an 2 obligation to conduct a de novo review of the R&R. The Court has, nevertheless, reviewed 3 the jury instructions and procedural default analysis, because the objections identified those 4 as being defective. 5 There is no dispute that Rodriguez stabbed his wife to death. His defense, however, 6 was that his wife’s verbal taunts (including an admission that she had been dating another 7 man) amounted to provocation, sufficient to permit the jury to find him guilty of voluntary 8 manslaughter rather than a more serious charge of first or second degree murder. The trial 9 court gave CALCRIM No. 570, the standard jury instruction on voluntary manslaughter based 10 on a “heat of passion” defense. (See R&R at 13–14 n.3 (text of instruction).)1 The trial court 11 also gave CALCRIM No. 522, which instructed the jury that the weight of provocation was 12 for them to decide, and that it could reduce a murder to manslaughter. (See id. at 14 n.4 13 (text of instruction).) Rodriguez’s attorney asked for a pinpoint instruction: “Provocation may 14 be based on a sudden and violent quarrel, verbal taunts by an unfaithful wife, and the 15 infidelity of a lover.” The trial court found that reference to an “unfaithful wife” and “infidelity 16 of a lover” were argumentative, but considered whether to include a pinpoint instruction that 17 provocation could be either verbal or physical. In the end, the trial court decided not to give 18 a pinpoint instruction at all, but allowed defense counsel to argue that Rodriguez’s wife’s 19 taunts amounted to sufficient provocation to reduce culpability. 20 On review, the state courts determined that the instruction as given, and read together 21 with other instructions, adequately informed the jury that provocation could be verbal — or 22 that, even if it did not, the fact that defense counsel was allowed to make this argument 23 rendered any error harmless. This was a reasonable determination. The R&R correctly 24 states the standards for federal habeas review of claimed errors in state court jury 25 /// 26 1 27 28 The R&R refers to this as an “involuntary manslaughter” instruction. The reference to involuntary rather than voluntary appears to be a scrivener’s error, because Rodriguez’s claim is that a properly-instructed jury would likely have convicted him only of voluntary manslaughter and not of second degree murder. (See Lodgment 8 (Petition for Review to California Supreme Court) at ii, 4–11.) -3- 13cv1191 1 instructions. (R&R, 16:5–18:27.) Even assuming this was an error — and it does not appear 2 it was — the claim falls far short of the standard for federal habeas relief. 3 The R&R, citing the state court decision on review, found Rodriguez’s second claim, 4 regarding the permissible inference in CALCRIM NO. 852 was procedurally defaulted. 5 Rodriguez’s claim is that when the trial court instructed the jury that it could infer Rodriguez 6 was guilty of murder based on his prior acts of domestic violence, it also should have 7 instructed the jury that the inference could also be applied to the lesser offense of voluntary 8 manslaughter. Although Rodriguez’s trial counsel objected to the instruction as a whole, he 9 never requested a clarifying or amplifying instruction after the court overruled that objection. 10 By failing to timely request a clarifying or amplifying instruction, the state court held, 11 Rodriguez had forfeited this claim. See People v. Castaneda, 51 Cal.4th 1292, 1348 (2011) 12 (holding that a party objecting to an allegedly incomplete or overly general instruction must 13 request acceptable amplifying or clarifying language, or the claim is forfeited on appeal); 14 People v. Geier, 41 Cal.4th 555, 579 (2007) (same). See Paulino v. Castro, 371 F.3d 1083, 15 1092–93 (9th Cir. 2004) (holding that California’s contemporaneous objection rule was an 16 independent and adequate state law basis for denying the claim). Rodriguez has failed to 17 establish either cause or prejudice for this. 18 The Court also notes that Rodriguez failed to exhaust this claim. To exhaust a claim, 19 a petitioner must fairly present it to each appropriate state court, including the highest court 20 of the state with powers of discretionary review (here, the California Supreme Court). See 21 Baldwin v. Reese, 541 U.S. 27, 29 (2004). The petition must alert the state court to the 22 federal nature of the claim, such as by citing federal law or labeling the claim as federal. Id. 23 at 32. But Rodriguez did not cite any federal authority to the California Supreme Court or in 24 any other way adequately apprise that court that this claim was federal in nature. (See 25 generally Lodgment 8 at 17–25.) He did cite federal law in his general conclusion, but only 26 in support of another argument, that the instruction regarding a permissible inference should 27 not have been given at all. He did not cite federal law in support of the procedurally 28 /// -4- 13cv1191 1 defaulted claim, i.e., that the jury should have been instructed that the inference could also 2 lead them to conclude Rodriguez was guilty of voluntary manslaughter.2 (Id. at 25–26.) 3 The Court has reviewed the R&R, finds it to be correct, OVERRULES Rodriguez’s 4 objections, and ADOPTS the R&R. The petition is DENIED, and a certificate of appealability 5 is also DENIED. 6 7 IT IS SO ORDERED. DATED: January 22, 2015 8 9 HONORABLE LARRY ALAN BURNS United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 25 26 27 28 Rodriguez argued that the section of the state evidence code permitting this inference was a “short-cut to conviction” that relieved the prosecution of its obligation to prove each element of the offense beyond a reasonable doubt. (Lodgment 8 at 18.) This is what his federal citation referred to. (See id. at 25 (“[T]he inference of Evidence Code section 1109 effectively creates a short-cut to a finding of guilt on what is the most serious of criminal charges.”) (citing the U.S. Constitution and Carella v. California, 491 U.S. 263, 265 (1989)). In that claim, he argued that the instruction should not have been given at all. The procedurally defaulted claim, by contrast, was that this instruction should have been expanded to cover voluntary manslaughter as well. -5- 13cv1191

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