Manning v. People of the State of California
Filing
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ORDER adopting re 20 Report and Recommendation. IT IS HEREBY ORDERED that: 1. The findings and conclusions of the magistrate judge presented in the report and recommendation are ADOPTED in their entirety; 2. The instant petition is DENIED with prejudice; 3. Petitioner is DENIED a certificate of appealability; and 4. The Clerk of Court shall enter judgment in accordance with this Order. Signed by Judge John A. Houston on 4/13/2018. (All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DAVID LESLIE MANNING, Jr.,
Case No.: 16-cv-0525-JAH-JMA
Petitioner,
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v.
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ORDER ADOPTING THE REPORT
AND RECOMMENDATION;
DENYING PETITION FOR WRIT
OF HABEAS CORPUS; AND
DENYING A CERTIFICATE OF
APPEALABILITY
STIRLING PRICE, Warden, et al.,
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Respondents.
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INTRODUCTION
Pending before the Court is Petitioner David Leslie Manning Jr.’s (“Petitioner”)
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state
court conviction. See Doc. No. 1. The Honorable Jan M. Adler, United States Magistrate
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Judge, submitted a report and recommendation (“report”) to this Court, recommending the
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petition be denied in its entirety. See Doc. No. 20. No objections to the magistrate judge’s
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report were filed. After careful consideration of the parties’ submissions, along with the
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entire record of this matter, this Court ADOPTS the magistrate judge’s report in its
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entirety, DENIES the instant petition, and DENIES a certificate of appealability.
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16-cv-0525-JAH-JMA
BACKGROUND1
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On January 30, 2013, the San Diego County District Attorney’s Office filed a felony
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complaint charging Petitioner with one count of stalking with a court order in effect, in
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violation of California Penal code § 646.9(b), and two counts of making a criminal threat,
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in violation of California Penal Code § 422. On April 15, 2013, Petitioner entered into a
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plea agreement in which he pleaded guilty to stalking with a court order in effect, and the
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remaining counts were dismissed. The court sentenced Petitioner to a stipulated sentence
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of six years in prison. Petitioner filed a petition for writ of habeas corpus in the California
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Court of Appeals on September 14, 2014, which was ultimately denied. Next, Petitioner
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filed a petition for a writ of habeas corpus with the California Supreme Court on March 14,
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2016, which the court denied with a citation to In re Dixon, 41 Cal. 2d 756, 759 (1953).
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Petitioner then filed an additional petition for writ of habeas corpus with the California
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Court of Appeals, which was denied, citing In re Clark, 5 Cal. 4th 750, 767 (1993).
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Petitioner filed another petition with the California Supreme Court which was denied once
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more, this time with a citation to In re Miller, 17 Cal. 2d 734, 735 (1941). Finally, Petitioner
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filed the operative petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this
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Court on April 4, 2016. Upon receiving an answer from the Respondent, Judge Adler
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submitted a report to this Court, recommending the petition be denied in its entirety.
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Petitioner has filed no objections to the report.
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DISCUSSION
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I.
Scope of Review
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The district court’s role in reviewing a magistrate judge’s report and
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recommendation is set forth in Title 28, United States Code, § 636(b)(1). Under this statute,
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the district court “shall make a de novo determination of those portions of the report . . . to
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The underlying facts set forth in the magistrate judge’s report, to which plaintiff presents no objection,
are adopted in toto, and referenced as if fully set forth herein.
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16-cv-0525-JAH-JMA
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which objection is made,” and “may accept, reject, modify, in whole or in part, the findings
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or recommendations made by the magistrate [judge].” Id. It is well-settled, under Rule
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72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of
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a magistrate judge’s report to which no specific objection is made, provided they are not
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clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).
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This petition is governed by the provisions of the Antiterrorism and Effective Death
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Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under
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AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the
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merits by the state court unless that adjudication: (1) resulted in a decision that was contrary
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to, or involved an unreasonable application of clearly established federal law; or (2)
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resulted in a decision that was based on an unreasonable determination of the facts in light
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of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v.
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Packer, 537 U.S. 3, 8 (2002). When there is no reasoned decision from the state’s highest
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court, the Court “looks through” to the underlying appellate court decision and presumes
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it provides the basis for the higher court’s denial of a claim or claims. See Ylst c.
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Nunnemaker, 501 U.S. 797, 805-06 (1991). “[S]o long as neither the reasoning nor the
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result of the state-court decision contradicts [Supreme Court precedent,]” the state court
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decision will not be “contrary to” clearly established federal law. Early, 537 U.S. at 8.
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Clearly established federal law, for the purposes of § 2254(d), means “the governing
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principle or principles set forth by the Supreme Court at the time the state court renders its
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decision.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003).
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II.
Analysis
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Petitioner alleges the following claims in his petition: (1) the police officer who
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reported to the scene falsified his report; (2) this falsified report was used against him in
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his preliminary hearing; (3) the evidence presented at the preliminary hearing was
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insufficient and the Prosecution failed to establish every element; and (4) Petitioner claims
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his counsel was ineffective for failing to argue these points.
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The Court received no objections to the magistrate judge’s report, nor did Petitioner
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request additional time in order to file objections. As such, this Court may adopt the
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magistrate judge’s findings and conclusions presented in the report as long as they are not
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clearly erroneous. See Thomas, 474 U.S. at 153. This Court’s careful de novo review of
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the record reflects the magistrate judge presented a cogent analysis of all of Petitioner’s
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claims and, thus, finds the magistrate judge’s findings and conclusions are not clearly
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erroneous.
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Specifically, the Court agrees with Judge Adler’s finding that Petitioner’s habeas
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petition was procedurally barred from federal review. See Bennett v. Mueller, 322 F.3d
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573, 583 (9th Cir. 2003). California procedure requires that following a denial by the Court
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of Appeal the appellant must file a petition for review to the California Supreme Court, not
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a habeas corpus petition. See Cal. R. Ct. 8.508. Petitioner failed to demonstrate the
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inadequacy of the California procedure or how failure to consider his claims would result
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in a fundamental miscarriage of justice, thus his claims are procedurally defaulted. See
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Coleman v. Thompson, 501 U.S. 722, 750 (1991).
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The Court also concurs with Judge Adler’s findings on the merits of Petitioner’s
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claims. In claims one and two, Petitioner argues the police report of the incident in question
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contained summaries of several voicemails left by Petitioner that omitted important
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portions of the voicemails, and that report was subsequently used against him at his
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preliminary hearing. However, a comparison of the police report and transcripts from the
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actual voicemails clearly illustrate that the police officer’s summation was not inaccurate.
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As to his third and fourth claims, Judge Adler correctly held that the evidence presented by
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the prosecution during the preliminary hearing was sufficient to establish probable cause
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in every count charged. Finally, the Court agrees that the representation by Petitioner’s
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counsel was not deficient, as Petitioner failed to establish either prong required by
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Strickland v. Washington, 466 U.S. 668 (1984).
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Accordingly, this Court ADOPTS the magistrate judge’s findings and conclusions
presented in the report in full and DENIES the instant petition in its entirety.
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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, the petitioner must demonstrate that “reasonable jurists could debate whether . .
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. the petition should have been resolved in a different manner or that the issues presented
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were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529
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U.S. 473, 475 (2000) (citation omitted). For the reasons set forth in the magistrate judge’s
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report and recommendation and incorporated by reference herein, the Court finds that this
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standard has not been met and therefore DECLINES to issue a certificate of appealability
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in this case.
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CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
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1. The findings and conclusions of the magistrate judge presented
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in the report and recommendation are ADOPTED in their
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entirety;
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2. The instant petition is DENIED with prejudice;
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3. Petitioner is DENIED a certificate of appealability; and
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4. The Clerk of Court shall enter judgment in accordance with this
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Order.
IT IS SO ORDERED.
DATED: April 13, 2018
_________________________________
JOHN A. HOUSTON
United States District Judge
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