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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 v. ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; DANIEL PARAMO, Warden, [Doc. No. 17] 12 13 14 15 Case No.: 14cv715-MMA (JLB) DWAYNE STANLEY IVEY, II, Petitioner, OVERRULING PETITIONER’S OBJECTIONS; Respondent. 16 [Doc. No. 21] 17 DENYING PETITION FOR WRIT OF HABEAS CORPUS; 18 [Doc. No. 1] 19 20 DENYING REQUEST FOR EVIDENTIARY HEARING; 21 [Doc. No. 1] 22 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 23 24 25 Petitioner Dwayne Stanley Ivey, II (“Petitioner”), a state prisoner proceeding pro 26 se, filed a petition for writ of habeas corpus (“petition”) pursuant to Title 28 of the United 27 States Code, section 2254, challenging the constitutionality of his conviction at trial for 28 committing a lewd act upon a child under the age of fourteen (Cal. Penal Code § 288(a)); -1- 14cv715-MMA (JLB) 1 sexual intercourse with a child ten years of age or younger (Cal. Penal Code § 288.7(a)); 2 sodomy with a child ten years of age or younger (Cal. Penal Code § 288.7(a)); digital 3 penetration of a child ten years of age or younger (Cal. Penal Code § 288.7(b)); oral 4 copulation with a child ten years of age or younger (Cal. Penal Code § 288.7(b)); and 5 found true the allegation that Petitioner engaged in substantial sexual conduct with a 6 child under the age of fourteen (Cal. Penal Code §1203.066(a)(9)). See Doc. No. 1. 7 Petitioner asserts he was denied his fundamental right to a fair trial due to a combination 8 of prosecutorial misconduct and the admission of irrelevant and highly prejudicial 9 evidence. See id. at 3-8. Respondent answered on the merits, requesting the petition be 10 denied with prejudice, and that no certificate of appealability be issued. See Doc. No. 6. 11 Petitioner filed a traverse. See Doc. No. 12. 12 The matter was referred to United States Magistrate Judge Burkhardt for 13 preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and 14 Civil Local Rule HC.2. Judge Burkhardt has issued a detailed and well-reasoned report 15 recommending that the Court deny Petitioner’s claims for relief without an evidentiary 16 hearing and dismiss the petition. See Doc. No. 17. Petitioner filed a motion for extension 17 of time to file his objections to the Report and Recommendation. See Doc. No. 19. The 18 Court granted Petitioner’s motion (Doc. No. 20), and Petitioner filed objections to the 19 Report and Recommendation on August 17, 2016. See Doc. No. 21. For the reasons set 20 forth below, the Court OVERRULES Petitioner’s objections and ADOPTS the Report 21 and Recommendation in its entirety. 22 STANDARD OF REVIEW 23 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 24 636(b)(1), the Court must “make a de novo determination of those portions of the report . 25 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 26 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 27 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 28 /// -2- 14cv715-MMA (JLB) 1 DISCUSSION 2 Petitioner objects to Judge Burkhardt’s Report and Recommendation on various 3 grounds. See Doc. No. 21. The Court has conducted a de novo review of the pertinent 4 portions of the record with respect to each of Petitioner’s objections, and each objection 5 is addressed in turn. 6 First, Petitioner objects to the legal standard applied in the portion of the Report 7 and Recommendation entitled “IV. Scope of Review,” on the ground that the applicable 8 provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are 9 “in part unconstitutional and illegal, and denies Petitioner due process and equal 10 protection of the law.” Doc. No. 21 at 2. The provisions of AEDPA govern federal 11 habeas corpus petitions. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). The Supreme 12 Court has consistently upheld the constitutionality of AEDPA and has stated, “[s]ection 13 2254(d) [as amended by AEDPA] reflects the view that habeas corpus is a ‘guard against 14 extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary 15 error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011), 16 quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979). Judge Burkhardt clearly 17 defined the applicable legal standard a federal court utilizes in determining whether to 18 grant a habeas corpus petition. Thus, the Court finds Petitioner’s objection to be without 19 merit. 20 Second, Petitioner contends he has met the appropriate standard to prevail on his 21 claims of prosecutorial misconduct, and admission of highly prejudicial evidence. See 22 Doc. No. 21 at 4. Petitioner’s objections do not present new argument and repeat the 23 arguments found in the petition. Judge Burkhardt thoroughly addresses these arguments 24 in the Report in Recommendation. Accordingly, the Court finds Petitioner’s 25 prosecutorial misconduct and admission of prejudicial evidence objections are without 26 merit. 27 28 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 -3- 14cv715-MMA (JLB) 1 motions requesting appointment of counsel, and found in both instances that Petitioner 2 failed to demonstrate that the interests of justice are best served by appointment of 3 counsel. See Doc. Nos. 10, 16. The Court finds Judge Burkhardt came to a sound 4 conclusion, and thus finds Petitioner’s objection without merit. 5 Finally, Petitioner claims he had insufficient time to respond to the Report and 6 Recommendation, and requests an additional “sixty (60) days with which to fully and 7 adequately file Petitioner’s objection(s).” Doc. No. 21 at 6. All written objections to the 8 Report and Recommendation were due on or before July 21, 2016. Doc. No. 17 at 38. 9 On July 25, 2016, Petitioner filed a motion with the Court requesting an extension of time 10 to respond to the Report and Recommendation. Doc. No. 19. The Court granted the 11 motion, and extended the deadline four weeks to August 18, 2016. Doc. No. 20. 12 Petitioner filed his objections on August 17, 2016. Doc. No. 21. Because the Court 13 previously granted Petitioner an extension of time to respond, coupled with the fact that 14 Petitioner filed his objections in a timely fashion, the Court finds Petitioner’s argument 15 meritless. 16 Accordingly, Petitioner’s objections are OVERRULED, the Report and 17 Recommendation is ADOPTED in its entirety, and the Petition for Writ of Habeas 18 Corpus and request for evidentiary hearing are DENIED. 19 CERTIFICATE OF APPEALABILITY 20 Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district 21 court must issue or deny a certificate of appealability when it enters a final order adverse 22 to the applicant.” A certificate of appealability is not issued unless there is “a substantial 23 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this 24 standard, a petitioner must show that reasonable jurists could debate whether the petition 25 should have been resolved in a different manner, or that the issues presented were 26 adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 27 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). 28 For the reasons set forth in the Report and Recommendation, the Court finds this -4- 14cv715-MMA (JLB) 1 standard has not been met. Accordingly, the Court DECLINES to issue a certificate of 2 appealability as to any claims or issues raised in the petition. 3 4 CONCLUSION Based on the foregoing, Petitioner’s objections are OVERRULED, the Report and 5 Recommendation is ADOPTED in its entirety, the Petition for Writ of Habeas Corpus 6 and request for evidentiary hearing are DENIED, and the Court DECLINES to issue a 7 certificate of appealability. 8 9 10 The Clerk of Court shall terminate this case and enter judgment in favor of Respondent. IT IS SO ORDERED. 11 12 13 14 15 Dated: December 15, 2016 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- 14cv715-MMA (JLB)

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