Koulavongsa v. California

Filing 15

ORDER (1) Adopting 14 Report and Recommendation And (2) Denying 6 Amended Petition For Writ Of Habeas Corpus. Having reviewed the Report and Recommendation, the Court finds that it is well reasoned and contains no clear error- Petitioner 9;s claim regarding his counsel's failure to object to certain evidence is foreclosed by Tollett v. Henderson, 411 U.S. 258 (1973), and Petitioner offers no evidence that his plea was coerced or that he would have obtained a more favorable ve rdict at trial. The Court therefore adopts in its entirely Judge Stormes's Report and Recommendation, (ECF No. 23), and denies with prejudice the Amended Petition, (ECF No. 6). Signed by Judge Janis L. Sammartino on 3/9/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SENGNGUEN KOULAVONGSA, Case No.: 16cv1115-JLS (NLS) Plaintiff, 12 13 14 ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS v. CALIFORNIA, et al., Defendants. 15 (ECF Nos. 6, 14) 16 17 18 Presently before the Court are Petitioner’s First Amended Petition for Writ of 19 Habeas Corpus (“Amended Pet.”), (ECF No. 6), and Magistrate Judge Nita L. Stormes’s 20 Report and Recommendation for Order Denying Petition for Writ of Habeas Corpus (“R. 21 & R.”), (ECF No. 23). 22 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 23 court’s duties in connection with a magistrate judge’s Report and Recommendation. The 24 district court must “make a de novo determination of those portions of the report to which 25 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 27 States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 28 617 (9th Cir. 1989). In the absence of timely objection, however, the Court “need only 1 16cv1115-JLS (NLS) 1 satisfy itself that there is no clear error on the face of the record in order to accept the 2 recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. 3 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 4 In the present case, Petitioner’s objections were due by November 17, 2016. (R. & 5 R. 9.) Over three months have passed since the due date, and the Court has heard nothing 6 from Petitioner. Accordingly, Petitioner failed to timely object to the Report and 7 Recommendation. 8 Finally, having reviewed the Report and Recommendation, the Court finds that it is 9 well reasoned and contains no clear error—Petitioner’s claim regarding his counsel’s 10 failure to object to certain evidence is foreclosed by Tollett v. Henderson, 411 U.S. 258 11 (1973), and Petitioner offers no evidence that his plea was coerced or that he would have 12 obtained a more favorable verdict at trial. The Court therefore (1) ADOPTS in its entirety 13 Judge Stormes’s Report and Recommendation, (ECF No. 23), and (2) DENIES WITH 14 PREJUDICE the Amended Petition, (ECF No. 6). 15 16 IT IS SO ORDERED. Dated: March 9, 2017 17 18 19 20 21 22 23 24 25 26 27 28 2 16cv1115-JLS (NLS)

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