Ivey v. Parano et al
Filing
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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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