Ivey v. Parano et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION of United States Magistrate Judge re 17 ; Overruling Petitioner's Objections re 21 ; Denying Petition for Writ of Habeas Corpus re 1 ; Denying Request for Evidentiary Hearing re 1 ; Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 12/15/2016.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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v.

ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

DANIEL PARAMO, Warden,

[Doc. No. 17]

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Case No.: 14cv715-MMA (JLB)

DWAYNE STANLEY IVEY, II,
Petitioner,

OVERRULING PETITIONER’S
OBJECTIONS;

Respondent.

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[Doc. No. 21]

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DENYING PETITION FOR WRIT
OF HABEAS CORPUS;

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[Doc. No. 1]

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DENYING REQUEST FOR
EVIDENTIARY HEARING;

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[Doc. No. 1]

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DECLINING TO ISSUE
CERTIFICATE OF
APPEALABILITY

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Petitioner Dwayne Stanley Ivey, II (“Petitioner”), a state prisoner proceeding pro

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se, filed a petition for writ of habeas corpus (“petition”) pursuant to Title 28 of the United

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States Code, section 2254, challenging the constitutionality of his conviction at trial for

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committing a lewd act upon a child under the age of fourteen (Cal. Penal Code § 288(a));
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sexual intercourse with a child ten years of age or younger (Cal. Penal Code § 288.7(a));

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sodomy with a child ten years of age or younger (Cal. Penal Code § 288.7(a)); digital

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penetration of a child ten years of age or younger (Cal. Penal Code § 288.7(b)); oral

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copulation with a child ten years of age or younger (Cal. Penal Code § 288.7(b)); and

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found true the allegation that Petitioner engaged in substantial sexual conduct with a

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child under the age of fourteen (Cal. Penal Code §1203.066(a)(9)). See Doc. No. 1.

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Petitioner asserts he was denied his fundamental right to a fair trial due to a combination

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of prosecutorial misconduct and the admission of irrelevant and highly prejudicial

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evidence. See id. at 3-8. Respondent answered on the merits, requesting the petition be

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denied with prejudice, and that no certificate of appealability be issued. See Doc. No. 6.

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Petitioner filed a traverse. See Doc. No. 12.

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The matter was referred to United States Magistrate Judge Burkhardt for

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preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and

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Civil Local Rule HC.2. Judge Burkhardt has issued a detailed and well-reasoned report

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recommending that the Court deny Petitioner’s claims for relief without an evidentiary

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hearing and dismiss the petition. See Doc. No. 17. Petitioner filed a motion for extension

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of time to file his objections to the Report and Recommendation. See Doc. No. 19. The

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Court granted Petitioner’s motion (Doc. No. 20), and Petitioner filed objections to the

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Report and Recommendation on August 17, 2016. See Doc. No. 21. For the reasons set

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forth below, the Court OVERRULES Petitioner’s objections and ADOPTS the Report

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and Recommendation in its entirety.

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STANDARD OF REVIEW

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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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636(b)(1), the Court must “make a de novo determination of those portions of the report .

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. . to which objection is made,” and “may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §

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636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

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DISCUSSION

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Petitioner objects to Judge Burkhardt’s Report and Recommendation on various

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grounds. See Doc. No. 21. The Court has conducted a de novo review of the pertinent

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portions of the record with respect to each of Petitioner’s objections, and each objection

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is addressed in turn.

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First, Petitioner objects to the legal standard applied in the portion of the Report

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and Recommendation entitled “IV. Scope of Review,” on the ground that the applicable

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provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are

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“in part unconstitutional and illegal, and denies Petitioner due process and equal

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protection of the law.” Doc. No. 21 at 2. The provisions of AEDPA govern federal

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habeas corpus petitions. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). The Supreme

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Court has consistently upheld the constitutionality of AEDPA and has stated, “[s]ection

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2254(d) [as amended by AEDPA] reflects the view that habeas corpus is a ‘guard against

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extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary

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error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011),

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quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979). Judge Burkhardt clearly

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defined the applicable legal standard a federal court utilizes in determining whether to

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grant a habeas corpus petition. Thus, the Court finds Petitioner’s objection to be without

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merit.

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Second, Petitioner contends he has met the appropriate standard to prevail on his

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claims of prosecutorial misconduct, and admission of highly prejudicial evidence. See

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Doc. No. 21 at 4. Petitioner’s objections do not present new argument and repeat the

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arguments found in the petition. Judge Burkhardt thoroughly addresses these arguments

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in the Report in Recommendation. Accordingly, the Court finds Petitioner’s

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prosecutorial misconduct and admission of prejudicial evidence objections are without

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merit.

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Third, Petitioner objects to Judge Burkhardt’s denial of Petitioner’s request for
appointment of counsel. Doc. No. 21 at 5. Judge Burkhardt twice considered Petitioner’s
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motions requesting appointment of counsel, and found in both instances that Petitioner

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failed to demonstrate that the interests of justice are best served by appointment of

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counsel. See Doc. Nos. 10, 16. The Court finds Judge Burkhardt came to a sound

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conclusion, and thus finds Petitioner’s objection without merit.

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Finally, Petitioner claims he had insufficient time to respond to the Report and

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Recommendation, and requests an additional “sixty (60) days with which to fully and

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adequately file Petitioner’s objection(s).” Doc. No. 21 at 6. All written objections to the

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Report and Recommendation were due on or before July 21, 2016. Doc. No. 17 at 38.

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On July 25, 2016, Petitioner filed a motion with the Court requesting an extension of time

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to respond to the Report and Recommendation. Doc. No. 19. The Court granted the

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motion, and extended the deadline four weeks to August 18, 2016. Doc. No. 20.

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Petitioner filed his objections on August 17, 2016. Doc. No. 21. Because the Court

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previously granted Petitioner an extension of time to respond, coupled with the fact that

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Petitioner filed his objections in a timely fashion, the Court finds Petitioner’s argument

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meritless.

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Accordingly, Petitioner’s objections are OVERRULED, the Report and

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Recommendation is ADOPTED in its entirety, and the Petition for Writ of Habeas

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Corpus and request for evidentiary hearing are DENIED.

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CERTIFICATE OF APPEALABILITY

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Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district

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court must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” A certificate of appealability is not issued unless there is “a substantial

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

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standard, a petitioner must show that reasonable jurists could debate whether the petition

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should have been resolved in a different manner, or that the issues presented were

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adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S.

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322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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For the reasons set forth in the Report and Recommendation, the Court finds this
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standard has not been met. Accordingly, the Court DECLINES to issue a certificate of

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appealability as to any claims or issues raised in the petition.

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CONCLUSION
Based on the foregoing, Petitioner’s objections are OVERRULED, the Report and

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Recommendation is ADOPTED in its entirety, the Petition for Writ of Habeas Corpus

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and request for evidentiary hearing are DENIED, and the Court DECLINES to issue a

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certificate of appealability.

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The Clerk of Court shall terminate this case and enter judgment in favor of
Respondent.
IT IS SO ORDERED.

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Dated: December 15, 2016
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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