Tucker v. Biter

Filing 15

ORDER: The Report and Recommendation (Doc. 14 ) is adopted in its entirety. The Petition for Writ of Habeas Corpus is denied. (Doc. 1 ). A certificate of appealability is granted. Signed by Judge William Q. Hayes on 6/11/2015. (All non-registered users served via U.S. Mail Service.) (mdc)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 MAURICE D. TUCKER, CASE NO. 14cv2462-WQH (NLS) Petitioner, vs. JEFFREY BEARD, Secretary, 12 ORDER Respondent. 13 HAYES, Judge: 14 The matter before the Court is the review of the Report and Recommendation 15 (ECF No. 14) issued by United States Magistrate Judge Nita L. Stormes, recommending 16 that this Court deny Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1). 17 I. 18 Background On August 25, 2011, Petitioner Maurice D. Tucker was found guilty of 19 “shooting at an inhabited house” in violation of California Penal Code section 246. 20 (ECF No. 13-3 at 126). The jury found that the Petitioner committed the offense “for 21 the benefit of, at the direction of, or in association with a criminal street gang with the 22 specific intent to promote, further, or assist in criminal conduct by gang members, 23 within the meaning of California Penal Code section 186.22(b)(1).” Id. The jury 24 further found that Petitioner was “a principal in the commission of the ... offense and 25 that in the commission of the ... offense at least one principal used a firearm causing the 26 death of another person within the meaning of California Penal Code section 27 12022.53(d) and (e).” Id. On December 19, 2011, Petitioner was sentenced to a total 28 prison term of 50 years to life. (ECF No. 13-4 at 162). Petitioner appealed his -1- 14cv2462-WQH-NLS 1 conviction asserting that (1) there is insufficient evidence to corroborate the testimony 2 of an informant who implicated him in a conspiracy to commit the murder, (2) the trial 3 court prejudicially erred by instructing the jury with Judicial Council Of California 4 Criminal Jury Instruction 315 (“CALCRIM No. 315"), and (3) his conviction for 5 shooting at an inhabited dwelling is not supported by substantial evidence. (ECF No. 6 1 at 43). On April 15, 2014, the Court of Appeal, Fourth Appellate District affirmed 7 the Judgment of the San Diego County Superior Court. See ECF No. 1 at 42. 8 On October 15, 2014, Petitioner filed the Petition for Writ of Habeas Corpus 9 pursuant to 28 U.S.C. section 2254. (ECF No. 1). Petitioner asserts three claims for 10 relief: (1) violation of due process rights because there was insufficient evidence to 11 convict Petitioner of shooting at an inhabited dwelling, (2) violation of due process 12 rights because the jury was instructed with CALCRIM No. 315, which erroneously 13 suggests that the confidence expressed by a witness in the accuracy of his own trial 14 identification is a reliable baromoter of its accuracy, and (3) violation of due process 15 right and right to effective assistance of counsel because appallate counsel failed to 16 raise valid claims on direct appeal. See ECF No. 1 at 6-8. On February 26, 2015, 17 Respondent Jeffrey Beard submitted an Answer. (ECF No. 12). 18 On April 29, 2015, Magistrate Judge Nita L. Stormes issued the Report and 19 Recommendation. (ECF No. 14). The Magistrate Judge found that the state court 20 decisions on Petitioner’s three claims for relief “did not contradict or unreasonably 21 apply ‘clearly established federal law’ as determined by the U.S. Supreme Court, and 22 did not rely on an unreasonable determination of the facts.” Id. at 10, 12, 16. The 23 Magistrate Judge concluded that “this court RECOMMENDS that the district court 24 issue an Order: (1) approving and adopting this Report and Recommendation; and (2) 25 denying the Petition.” Id. at 16. 26 II. Discussion 27 The duties of the district court in connection with a report and recommendation 28 of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 -2- 14cv2462-WQH-NLS 1 U.S.C. § 636(b)(1). When a party objects to a report and recommendation, “[a] judge 2 of the [district] court shall make a de novo determination of those portions of the 3 [Report and Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). 4 When no objections are filed, the district court need not review the report and 5 recommendation de novo. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 6 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003). A district court 7 may “accept, reject, or modify, in whole or in part, the findings or recommendations 8 made by the magistrate judge.” Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). 9 Neither party objected to the Report and Recommendation, and the Court has 10 reviewed the Report and Recommendation in its entirety. The Court concludes that the 11 Magistrate Judge correctly recommended that the Petition for Writ of Habeas Corpus 12 (ECF No.1) be denied. The Court adopts the Report and Recommendation in its 13 entirety. 14 III. Certificate of Appealability 15 A certificate of appealability must be obtained by a petitioner in order to pursue 16 an appeal from a final order in a section 2254 habeas corpus proceeding. See 28 U.S.C. 17 § 2253(c)(1)(A); Fed R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules 18 Governing Section 2254 Cases, “[t]he district court must issue or deny a certificate of 19 appealability when it enters a final order adverse to the applicant.” 20 A certificate of appealability should be issued only where the petition presents 21 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 22 It must appear that reasonable jurists could find the district court’s assessment of the 23 petitioner’s constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 24 484 (2000). The Court finds that Petitioner has raised colorable, nonfrivolous 25 arguments. The Court grants a certificate of appealability. 26 /// 27 28 IV. Conclusion -3- 14cv2462-WQH-NLS 1 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 14) 2 is ADOPTED in its entirety. The Petition for Writ of Habeas Corpus is DENIED. 3 (ECF No. 1). A certificate of appealability is GRANTED. 4 5 6 7 DATED: June 11, 2015 WILLIAM Q. HAYES United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 14cv2462-WQH-NLS

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?