Charfauros v. Unknown

Filing 29

ORDER adopting re 27 Report and Recommendation. After considering Petitioners Objection and conducting a de novo review of the R&R and the Petition, the Court hereby: (1) OVERRULES Petitioner's generalized Objection (ECF No. 28); (2) APPROVES and ADOPTS the R&R in its entirety (ECF No. 27); (3) DENIES the Petition (ECF No. 3); and (4) DENIES a certificate of appealability. Signed by Judge Cynthia Bashant on 9/7/2018. (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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ALEX RAY CHARFAUROS,
Petitioner,

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Case No. 17-cv-266-BAS-KSC
ORDER:

v.

(1) OVERRULING OBJECTION
[ECF No. 28];

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(2) ADOPTING REPORT &
RECOMMENDATION
[ECF No. 27];

SCOTT KERNAN, Warden,
Respondent.

(3) DENYING PETITION
[ECF No. 3];

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AND

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(4) DENYING CERTIFICATE OF
APPEALABILITY

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On April 10, 2017, Petitioner Alex R. Charfauros (“Petitioner”), a state

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prisoner proceeding pro se, filed an Amended Petition for a Writ of Habeas Corpus

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(the “Petition”) pursuant to 28 U.S.C. § 2254, seeking relief from his August 23, 2013

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conviction in San Diego Superior Court for, inter alia, second degree murder and his

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resulting sentence of 85 years to life. (ECF No. 3.) On July 17, 2017, Magistrate

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Judge Karen Crawford issued a Report and Recommendation (R&R), which

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recommends that this Court deny the Petition in its entirety because Petitioner has

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failed to show he is entitled to federal habeas relief on any ground. (ECF No. 27.)
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Petitioner has filed an Objection to the R&R. (ECF No. 28.) For the reasons herein,

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the Court: (1) overrules Petitioner’s Objection, (2) approves and adopts the R&R in

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its entirely, (3) denies the Petition, and (4) denies a certificate of appealability.
LEGAL STANDARD

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The Court reviews de novo those portions of an R&R to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate judge.” Id. “The

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statute makes it clear,” however, “that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district

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court had no obligation to review the magistrate judge’s report). “Neither the

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Constitution nor the statute requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328

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F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district.

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See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo

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review of a[n] R & R is only required when an objection is made to the R & R.”);

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Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting

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report in its entirety without review because neither party filed objections to the

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report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d

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1155, 1157 (S.D. Cal. 2004) (Benitez, J.).
ANALYSIS1

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A.

Petitioner Has Failed to Make a Proper Objection to the R&R
Objections to an R&R must be properly made before triggering a district

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The Court adopts and incorporates the procedural and factual background as
well as the applicable standard of review for a federal habeas petition set forth in the
R&R and does not recount those points in this Order. (ECF No. 27 at 2–8.)
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judge’s responsibility to conduct a de novo review. See Fed. R. Civ. P. 72(b)(3)

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(“The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to.”). At a minimum, objections must be

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written and specific. See Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file

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specific written objections to the proposed findings and recommendations” of the

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magistrate judge.) (emphasis added). “Numerous courts have held that a general

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objection to the entirety of a Magistrate Judge’s R&R has the same effect as a failure

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to object.” Alcantara v. McEwen, No. 12-CV-401, 2013 WL 4517861, at *1 (S.D.

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Cal. Aug. 15, 2013) (citing cases); see also Robles v. Beard, No. 14-cv-1514-BAS-

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NLS, 2015 WL 7313874, at *1–2 (S.D. Cal. Nov. 20, 2015).

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In this case, Petitioner’s Objection is insufficient to trigger de novo review.

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Petitioner’s “objection” to the R&R is that he “has demonstrated” and “clearly

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establishe[d]” error in his state court proceedings. (ECF No. 28 at 1–2.) Although

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Petitioner reasserts that he is entitled to federal habeas relief on the grounds raised in

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his Petition, at no point in his Objection does Petitioner identify any particular facts

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or analysis in the R&R to which he objects. (See generally id.) Petitioner has thus

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not raised any valid objections to the R&R. See Turner v. Tilton, No. 07-CV-2036-

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JLB-AJB, 2008 WL 5273526, at *1 (S.D. Cal. Dec. 18, 2008) (Sammartino, J.)

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(“[H]is objections do not address the substance of the R & R’s findings. Instead, the

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objections discuss at length the claims made in the petition. Because Petitioner has

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not made an objection to any specific portion of the report. Therefore, the Court need

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only satisfy itself that the R & R is not clearly erroneous.”); see also Grady v. Biter,

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No. 13-cv-2479-BAS-MDD, 2016 WL 537175 at *3 (S.D. Cal. Feb. 10, 2016)

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(“Petitioner’s objections amount to ‘general objections’ that do not address the

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substance of any specific findings in the Report, which in turn has the same effect as

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failing to object.”).

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B.

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The R&R Properly Recommends Denial of the Petition
In the absence of any specific objection to an R&R, the clear weight of
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authority indicates that the Court need only satisfy itself that there is no “clear error”

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on the face of the record before adopting Judge Crawford’s recommendation. See

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Fed. R. Civ. P. 72(b) Advisory Comm. Notes (1983) (citing Campbell v. United

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States Dist. Court, 501 F.2d 5, 7 (9th Cir. 1974)). However, the Court has conducted

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a de novo review of the Petition (ECF No. 3), Respondent’s Answer and the lodgment

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of the state court record (ECF Nos. 24, 25), the Traverse filed by Petitioner (ECF No.

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26), and Judge Crawford’s R&R (ECF No. 27). Having conducted a de novo review,

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the Court concludes that Judge Crawford’s recommendation to deny the Petition is

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sound.

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As Judge Crawford correctly reasons, Petitioner has failed to show that he is

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entitled to federal habeas relief on any of the grounds raised in the Petition. First,

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Petitioner’s challenge to the sufficiency of the evidence underlying his convictions

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fails because the evidence offered at trial was sufficient for a jury to convict

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Petitioner. As the R&R correctly observes, the conclusion of the California Court of

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Appeal on this issue in Petitioner’s direct appeal was not objectively unreasonable

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such that it should be disregarded by this Court. (ECF No. 27 at 9–14.) Second,

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Petitioner’s request for habeas relief due to the allegedly wrongful admission of

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evidence fails because the challenge is procedurally defaulted pursuant to

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California’s contemporaneous objection rule. (Id. at 15–17.) Third, Petitioner’s

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ineffective assistance of counsel claim fails because he cannot establish prejudice

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pursuant to Strickland v. Washington, 466 U.S. 668 (1984), based on his trial

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counsel’s alleged failure to object to the admission of certain testimony, a

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determination which the California Court of Appeal also reached. (Id. at 17–19.)

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Finally, Petitioner’s claim for habeas relief due to an allegedly wrongful imposition

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of a sentence enhancement fails. Petitioner argues that his indictment did not

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explicitly allege that the attempted murders of police officers were willful, deliberate

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and premeditated. However, in reference to the California Court of Appeal decision

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which also addressed this claim, the R&R soundly observes that the indictment’s
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failure to charge on this basis does not entitle Petitioner to relief because the defense

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proffered a jury instruction on willful, deliberate and premeditated murder at trial,

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which provided notice to Petitioner.

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concludes that the R&R’s recommendation to deny the Petition is proper.

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C.

(Id. at 19–21.)

Accordingly, this Court

The Court Declines to Issue a Certificate of Appealability

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Pursuant to Rule 11 of the Rules following 28 U.S.C. § 2254, a district court

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“must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” The district court may issue a certificate of appealability if the

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petitioner “has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. §2253(c)(2). To meet this threshold showing, a petitioner must show that: (1)

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the issues are debatable among jurists of reason, (2) that a court could resolve the

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issues in a different manner, or (3) that the questions are adequate to deserve

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encouragement to proceed further. Maciel v. Cate, 731 F.3d 928, 932 (9th Cir. 2013).

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Based on a review of the Petition, the record, and the R&R (ECF Nos. 3, 24–27), the

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Court finds that reasonable jurists would not find the Court’s assessment of the claims

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in the Petition debatable or wrong. Accordingly, the Court denies Petitioner a

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certificate of appealability.
CONCLUSION & ORDER

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After considering Petitioner’s Objection and conducting a de novo review of

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the R&R and the Petition, the Court hereby: (1) OVERRULES Petitioner’s

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generalized Objection (ECF No. 28); (2) APPROVES and ADOPTS the R&R in its

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entirety (ECF No. 27); (3) DENIES the Petition (ECF No. 3); and (4) DENIES a

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certificate of appealability.

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IT IS SO ORDERED.

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DATED: September 7, 2018

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