Manning v. People of the State of California

Filing 22

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID LESLIE MANNING, Jr., Case No.: 16-cv-0525-JAH-JMA Petitioner, 12 13 v. 14 ORDER ADOPTING THE REPORT AND RECOMMENDATION; DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING A CERTIFICATE OF APPEALABILITY STIRLING PRICE, Warden, et al., 15 Respondents. 16 17 18 19 20 21 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 22 Judge, submitted a report and recommendation (“report”) to this Court, recommending the 23 petition be denied in its entirety. See Doc. No. 20. No objections to the magistrate judge’s 24 report were filed. After careful consideration of the parties’ submissions, along with the 25 entire record of this matter, this Court ADOPTS the magistrate judge’s report in its 26 entirety, DENIES the instant petition, and DENIES a certificate of appealability. 27 28 1 16-cv-0525-JAH-JMA BACKGROUND1 1 2 On January 30, 2013, the San Diego County District Attorney’s Office filed a felony 3 complaint charging Petitioner with one count of stalking with a court order in effect, in 4 violation of California Penal code § 646.9(b), and two counts of making a criminal threat, 5 in violation of California Penal Code § 422. On April 15, 2013, Petitioner entered into a 6 plea agreement in which he pleaded guilty to stalking with a court order in effect, and the 7 remaining counts were dismissed. The court sentenced Petitioner to a stipulated sentence 8 of six years in prison. Petitioner filed a petition for writ of habeas corpus in the California 9 Court of Appeals on September 14, 2014, which was ultimately denied. Next, Petitioner 10 filed a petition for a writ of habeas corpus with the California Supreme Court on March 14, 11 2016, which the court denied with a citation to In re Dixon, 41 Cal. 2d 756, 759 (1953). 12 Petitioner then filed an additional petition for writ of habeas corpus with the California 13 Court of Appeals, which was denied, citing In re Clark, 5 Cal. 4th 750, 767 (1993). 14 Petitioner filed another petition with the California Supreme Court which was denied once 15 more, this time with a citation to In re Miller, 17 Cal. 2d 734, 735 (1941). Finally, Petitioner 16 filed the operative petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this 17 Court on April 4, 2016. Upon receiving an answer from the Respondent, Judge Adler 18 submitted a report to this Court, recommending the petition be denied in its entirety. 19 Petitioner has filed no objections to the report. 20 DISCUSSION 21 I. Scope of Review 22 The district court’s role in reviewing a magistrate judge’s report and 23 recommendation is set forth in Title 28, United States Code, § 636(b)(1). Under this statute, 24 the district court “shall make a de novo determination of those portions of the report . . . to 25 26 27 28 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. 1 2 16-cv-0525-JAH-JMA 1 which objection is made,” and “may accept, reject, modify, in whole or in part, the findings 2 or recommendations made by the magistrate [judge].” Id. It is well-settled, under Rule 3 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of 4 a magistrate judge’s report to which no specific objection is made, provided they are not 5 clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985). 6 This petition is governed by the provisions of the Antiterrorism and Effective Death 7 Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under 8 AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the 9 merits by the state court unless that adjudication: (1) resulted in a decision that was contrary 10 to, or involved an unreasonable application of clearly established federal law; or (2) 11 resulted in a decision that was based on an unreasonable determination of the facts in light 12 of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. 13 Packer, 537 U.S. 3, 8 (2002). When there is no reasoned decision from the state’s highest 14 court, the Court “looks through” to the underlying appellate court decision and presumes 15 it provides the basis for the higher court’s denial of a claim or claims. See Ylst c. 16 Nunnemaker, 501 U.S. 797, 805-06 (1991). “[S]o long as neither the reasoning nor the 17 result of the state-court decision contradicts [Supreme Court precedent,]” the state court 18 decision will not be “contrary to” clearly established federal law. Early, 537 U.S. at 8. 19 Clearly established federal law, for the purposes of § 2254(d), means “the governing 20 principle or principles set forth by the Supreme Court at the time the state court renders its 21 decision.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). 22 II. Analysis 23 Petitioner alleges the following claims in his petition: (1) the police officer who 24 reported to the scene falsified his report; (2) this falsified report was used against him in 25 his preliminary hearing; (3) the evidence presented at the preliminary hearing was 26 insufficient and the Prosecution failed to establish every element; and (4) Petitioner claims 27 his counsel was ineffective for failing to argue these points. 28 3 16-cv-0525-JAH-JMA 1 The Court received no objections to the magistrate judge’s report, nor did Petitioner 2 request additional time in order to file objections. As such, this Court may adopt the 3 magistrate judge’s findings and conclusions presented in the report as long as they are not 4 clearly erroneous. See Thomas, 474 U.S. at 153. This Court’s careful de novo review of 5 the record reflects the magistrate judge presented a cogent analysis of all of Petitioner’s 6 claims and, thus, finds the magistrate judge’s findings and conclusions are not clearly 7 erroneous. 8 Specifically, the Court agrees with Judge Adler’s finding that Petitioner’s habeas 9 petition was procedurally barred from federal review. See Bennett v. Mueller, 322 F.3d 10 573, 583 (9th Cir. 2003). California procedure requires that following a denial by the Court 11 of Appeal the appellant must file a petition for review to the California Supreme Court, not 12 a habeas corpus petition. See Cal. R. Ct. 8.508. Petitioner failed to demonstrate the 13 inadequacy of the California procedure or how failure to consider his claims would result 14 in a fundamental miscarriage of justice, thus his claims are procedurally defaulted. See 15 Coleman v. Thompson, 501 U.S. 722, 750 (1991). 16 The Court also concurs with Judge Adler’s findings on the merits of Petitioner’s 17 claims. In claims one and two, Petitioner argues the police report of the incident in question 18 contained summaries of several voicemails left by Petitioner that omitted important 19 portions of the voicemails, and that report was subsequently used against him at his 20 preliminary hearing. However, a comparison of the police report and transcripts from the 21 actual voicemails clearly illustrate that the police officer’s summation was not inaccurate. 22 As to his third and fourth claims, Judge Adler correctly held that the evidence presented by 23 the prosecution during the preliminary hearing was sufficient to establish probable cause 24 in every count charged. Finally, the Court agrees that the representation by Petitioner’s 25 counsel was not deficient, as Petitioner failed to establish either prong required by 26 Strickland v. Washington, 466 U.S. 668 (1984). 27 28 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. 4 16-cv-0525-JAH-JMA 1 III. Certificate of Appealability 2 Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district 3 court must issue or deny a certificate of appealability when it enters a final order adverse 4 to the applicant.” A certificate of appealability is not issued unless there is “a substantial 5 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this 6 standard, the petitioner must demonstrate that “reasonable jurists could debate whether . . 7 . the petition should have been resolved in a different manner or that the issues presented 8 were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 9 U.S. 473, 475 (2000) (citation omitted). For the reasons set forth in the magistrate judge’s 10 report and recommendation and incorporated by reference herein, the Court finds that this 11 standard has not been met and therefore DECLINES to issue a certificate of appealability 12 in this case. 13 14 CONCLUSION AND ORDER Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. The findings and conclusions of the magistrate judge presented 16 in the report and recommendation are ADOPTED in their 17 entirety; 18 2. The instant petition is DENIED with prejudice; 19 3. Petitioner is DENIED a certificate of appealability; and 20 4. The Clerk of Court shall enter judgment in accordance with this 21 22 23 24 25 26 Order. IT IS SO ORDERED. DATED: April 13, 2018 _________________________________ JOHN A. HOUSTON United States District Judge 27 28 5 16-cv-0525-JAH-JMA

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