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DAVIS v. LAMARQUE

United States District Court, S.D. California


September 7, 2005.

BAYARD DEVELL DAVIS, Petitioner,
v.
A.A. LAMARQUE, Warden, et al., Respondent.

The opinion of the court was delivered by: JAN ADLER, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

I. Introduction and Procedural Background

Davis is a state prisoner serving a sentence of 53 years, 8 months to life after pleading guilty to four counts of first degree residential burglary, forcible rape, forcible sodomy, two counts of assault with a deadly weapon, wilful cruelty to an elder adult, assault with intent to commit rape, and wilful cruelty to an elder adult under conditions likely to cause great bodily injury or death. (Respondent's Lodgment No. 1, Clerk's Transcript, pp. 125-131, 181-184, 196-197.) Davis was a minor at the time he committed the crimes, but his case proceeded through the adult criminal court pursuant to a determination that he was unfit for juvenile court proceedings on September 23, 1998. (Lodgment No. 4.)

  Davis appealed his sentence, and the California Court of Appeal affirmed the judgment on October 25, 2001. (Lodgment No. 11.) The California Supreme Court denied Davis' petition for review on January 3, 2002. (Lodgment No. 13.)

  Davis filed a Petition for Writ of Habeas Corpus in this Court on March 3, 2003. Respondent filed an Answer on June 18, 2003. On October 17, 2003, the Honorable Jan M. Adler, U.S. Magistrate Judge, issued a Report recommending that the petition be denied in its entirety. On November 6, 2003, Davis filed his objections to the Report, and raised two new claims: (1) that his trial counsel was ineffective for failing to appear personally by allowing an "intern" to appear in his stead at certain court hearings and (2) that his trial counsel was ineffective for failing to present Davis' psychiatric report or mental information to the juvenile court prior to that court's finding that Davis was unfit to proceed in juvenile court.

  On February 12, 2004, the Honorable John A. Houston, U.S. District Judge, issued an order directing Davis to choose among four options regarding the two new unexhausted claims presented in his objections to Judge Adler's Report. Davis then moved to stay the proceedings while he exhausted the two new claims in state court. The Court granted that request in an order filed on March 9, 2004, and extended the stay until February 25, 2005 in an order filed on December 9, 2004.

  On March 8, 2005, after receiving a letter from Davis indicating that he had exhausted the two new claims in state court, Judge Adler issued an order requiring Davis to file an amended petition on or before March 30, 2005. On March 21, 2005, Davis filed his Amended Petition, alleging that his trial counsel was ineffective because he: (1) failed to appear personally by allowing an "intern" to appear in his stead at certain court hearings; and (2) failed to present Davis' psychiatric report or mental information to the juvenile court prior to that court's finding that Davis was unfit to proceed in juvenile court. (Amended Pet. at 1-2.)

  On March 28, 2005 the Court issued an order requiring Respondent to file either a motion to dismiss by April 29, 2005 or an Answer by May 13, 2005. On April 26, 2005 Respondent filed a request for an enlargement of time in which to file its motion to dismiss. The Court granted that request on April 28, 2005, when it issued an order requiring Respondent to file a motion to dismiss on or before May 27, 2005. On May 19, 2005, Respondent filed a Motion to Dismiss, arguing that Davis' two new claims should be dismissed as "conclusory for lack of specificity." (Resp.'s Ps & As at 8, 10.) However, Respondent also argues that each claim should be denied on its merits. (Resp.'s Ps & As at 8, 10.) In addition, Respondent requests that the Court alternatively treat its Motion to Dismiss as a Short Answer. (Resp.'s Notice of Motion to Dismiss at 2.)

  Because Respondent filed what appears to be a combination of a Motion to Dismiss and an Answer, Davis filed both an Opposition to the Motion to Dismiss and a Traverse on May 31, 2005. The Court will first address Respondent's Motion to Dismiss. II. Respondent's Motion to Dismiss

  Respondent argues that both of Davis' claims in his amended petition must be dismissed "as conclusory for lack of specificity." (Resp.'s Ps & As at 8, 10.) Respondent states that because Davis raises each challenge in "only one cursory sentence, with no citation to the record, no citation to federal law, and no analysis whatsoever," the petition should be dismissed. (Resp.'s Ps & As at 8, 10.)

  Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition "shall set forth in summary form the facts supporting each of the grounds . . . specified [in the petition]." Rule 2(c), 28 U.S.C. foll. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial court's dismissal of federal habeas proceeding affirmed where petitioner made conclusory allegations instead of factual allegations showing that he was entitled to relief). In order to satisfy Rule 2(c), Davis must point to a "real possibility of constitutional error." Cf. Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (internal quotation marks omitted). Facts must be stated in the petition with sufficient detail to enable the Court to determine, from the face of the petition, whether further habeas corpus review is warranted. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit the respondent to assert appropriate objections and defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla. 1989).

  In the current case, Respondent is correct that each of Davis' claims is stated "[in] only one cursory sentence, with no citation to the record, no citation to federal law, and no analysis whatsoever." However, in its habeas packet to prisoners, this Court specifically instructs potential petitioners to "state [the facts] briefly without citing cases or law." In addition, it is clear from Davis' Amended Petition that his two ineffective assistance of counsel claims are based on two specific incidents. Indeed, the very fact that Responded filed its Motion to Dismiss in combination with an Answer shows that Davis' allegations are "sufficiently specific to permit the respondent to assert appropriate objections and defenses." See Harris v. Allen at 565.

  Therefore, the Court recommends that Respondent's Motion to Dismiss be DENIED. The Court will consider the remainder of Respondent's responsive pleading as an Answer, and will consider the petition on its merits.

  III. Legal Analysis

  A. Standard Of Review

  Federal habeas corpus relief is granted "only on the ground that [the state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors of state law are not cognizable in federal habeas corpus proceedings. Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).

  The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern this petition, since it was filed after the statute became effective on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA prohibits a federal court from granting a petition of a state prisoner whose claims were adjudicated on the merits in state court, unless the federal court first finds that the state court decision was contrary to clearly established Supreme Court law, or involved an unreasonable application of the facts to such law. 28 U.S.C. § 2254 (d).

 

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. 362, 412-413 (2000).

 

. . . [A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Id. at 410-411 (emphasis in original). It is not enough that the state court determination is incorrect. In order to obtain federal habeas relief under the "unreasonable application" clause, the state court determination must have been objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 76 (2003).*fn1 The AEDPA also requires deference to state court findings of fact. Under § 2254(e)(1), federal courts must "give great deference to the state court's factual findings." Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997)). Section 2254(e)(1) provides: "[A] determination of a factual issue made by a State court shall be presumed to be correct." The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. The Court may grant habeas relief if the state court's decision "was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2).

  B. Davis' First Claim

  Davis' first claim is that his trial counsel was ineffective for failing to appear personally at certain court hearings and allowing an "intern" to appear in his stead at those hearings. (Amended Pet. at 1-2.) Respondent correctly notes that, according to the record: [R]etained trial counsel Vincent Ross was present at all relevant proceedings: Petitioner's fitness hearing in the juvenile court, the change-of-plea hearing, and the sentencing hearing. (Lodgments 4, 5.) The record further shows that Ross's then-associate Danna Cotman did appear for Ross at the preliminary hearing and at some proceedings (on apparent vacation dates) in December and January, including a successful hearing granting counsel's motion to dismiss the aged-victim enhancement. (Cal. Pen. Code § 667.9). (Lodgment 1, at CT 235, 236, 238, 239; Lodgment 2, at RT 3.)

 (Resp.'s Ps & As at 9.) In addition, Respondent points out that Ms. Cotman was not an "intern," but a practicing attorney and member of the bar since June 5, 1997, well before representing Davis in the state court proceedings in this matter.*fn2 (Resp.'s Ps & As at 9.) The questions before the Court are: (1) whether Davis' trial counsel was ineffective in allowing Ms. Cotman to appear in his place on several occasions; and (2) whether Ms. Cotman was ineffective during her representation of Davis.

  Under clearly established Supreme Court law, to establish ineffective assistance of counsel, a petitioner must show: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 690, 692, 694 (1984). This Court strongly presumes that counsel's conduct fell within the wide range of reasonable assistance and that counsel exercised acceptable judgment in all significant respects. Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). California courts use the analysis set out in Strickland to evaluate ineffective assistance of counsel claims. People v. Ledesma, 43 Cal. 3d 171, 215-218 (1987).

  The Court can find no "clearly established" Supreme Court law stating that it is ineffective assistance of counsel for an attorney to allow another licensed attorney to appear on his or her behalf at a court hearing. See Williams v. Taylor, 529 U.S. 362, 412-413 (2000). In addition, Davis has alleged absolutely no facts that would indicate he was prejudiced by his trial counsel's actions, or by Ms. Cotman's actions during the time she appeared on behalf of Davis' trial counsel. As Respondent aptly notes:

[A] reading of the preliminary hearing shows that Cotman did more than the merely `reasonably adequate' job required by Strickland, but really fought for Petitioner in a most difficult case. (See Lodgment 2, at RT 3-135; and see Strickland, 466 U.S. at 687-689.) Importantly, it was Cotman who requested the pre-sentencing psychological evaluation of Petitioner . . . in an effort to obtain any possible leniency at sentencing. (Lodgment 1, at CT 168; additional citation omitted.)
(Resp.'s Ps & As at 10.) Ms. Cotman was a licensed attorney at the time she represented Davis, and the Court can find no evidence in the record that her actions constituted ineffective assistance of counsel.

  Based on the foregoing reasons, this Court recommends that Davis' first claim be DENIED.

  C. Davis' Second Claim.

  Davis' second claim is that his trial counsel was ineffective for failing to present Davis' psychiatric report or mental information to the juvenile court prior to that court's finding that Davis was unfit to proceed in juvenile court. (Amended Pet. at 1-2.) Davis was interviewed for his psychiatric report on January 29, 1999, which was filed on May 25, 1999 in preparation for his sentencing. (Lodgment No. 1, at CT 163, 168.) This occurred well after his juvenile court fitness hearing on September 23, 1998. (Lodgment No. 4.) Respondent asserts that Davis is claiming that the January 29, 1999 psychiatric report should have been presented in the earlier 1998 juvenile court fitness hearing. (Resp.'s Ps & As at 11.) However, the Court will presume that Davis is claiming that his counsel during the juvenile court proceedings erred by not preparing and submitting a psychiatric report for the juvenile court fitness hearing.

  In reviewing the record, the Court cannot ascertain with certainty whether Davis' attorney during the juvenile court proceedings prepared and filed a psychiatric report. The record from the juvenile court fitness hearing indicates that Davis' attorney did not.*fn3 However, even assuming Davis' attorney did not present a psychiatric report, Davis was not prejudiced by his attorney's alleged omission. See Strickland, 466 U.S. 668 at 670 (stating that "a court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.").

  In determining whether Davis was prejudiced as a result of his attorney's alleged failure to present a psychiatric report at the fitness hearing, this Court will presume that any psychiatric report prepared for the September 23, 1998 fitness hearing would have been substantially similar to the January 29, 1999 psychiatric report. This Court will consider whether the information contained in the 1999 psychiatric report would have made a difference at the fitness hearing.

  Davis' judge during the fitness hearing was required to consider five criteria in determining whether Davis should be prosecuted in juvenile court or the adult criminal court system. (Lodgement No. 4 at 2, 3.) See Cal. Welf. & Inst. Code § 707(D)(1) and (2). Those criteria were: (1) the degree of criminal sophistication exhibited by Davis; (2) whether Davis could be rehabilitated prior to the expiration of the juvenile court's jurisdiction; (3) Davis' previous delinquent history; (4) the success of previous attempts by the juvenile court to rehabilitate Davis; and (5) the circumstances and the gravity of the offense alleged to have been committed by the minor. (Lodgment No. 4 at 3.)

  1. The Degree of Criminal Sophistication

  The judge for the fitness examination was the Honorable Federico Castro. Regarding the first criterion, the degree of criminal sophistication, Judge Castro stated:

As used in my decision, the degree of criminal sophistication is defined, number one, as the extent to which the minor has committed himself to a criminal lifestyle when compared with the lifestyle of those of similar age in the general population; and, two, the degree of criminal sophistication exhibited by the minor during the alleged commission of the present offense or offenses.
The following factors I took into consideration: Although the minor does not have an extensive juvenile history, it is apparent that he chose to possess and use a weapon — that's knives — in these alleged offenses for the purpose of intimidating the victims into submission. The minor planned the offenses. He chose apartments near his home. Each of the apartments was occupied by an elderly female victim living alone. The victims were elderly women who resided in a neighborhood where elderly residents predominate. The choice of selecting helpless victims is certainly an indication of criminal sophistication. The minor chose elderly females because they were obviously more vulnerable to attack and less able to defend themselves. The minor entered each of the apartments when no one was home except the victim, thus reducing the possibility of physical resistance or his own apprehension. The minor was reported by the victims to be wearing dark clothing. The allegations that a knife was used to facilitate the attempted rapes and rapes is evidence of the minor's commitment to a criminal lifestyle. The minor was on juvenile probation for various cases when he was planning and committed the current crimes. The planning and execution of the crimes against the elderly women certainly shows sophistication and callousness in the commission of said offenses.
On one occasion, the perpetrator was wearing a stocking cap to hide his identity.
So, as to criteria (A), the court finds in balancing and considering what has been proposed and submitted in mitigating or extenuating circumstances, that they do not rebut the presumption of unfitness by a preponderance of the evidence. Therefore, as to criteria (A), the court finds the minor is unfit and therefore is not amenable to the juvenile court law.
(Lodgment No. 4 at 4-5.)

  It is unlikely that anything contained in the 1999 psychiatric report would have aided Davis at his fitness hearing regarding the degree of criminal sophistication. For example, although Davis indicated to the psychological examiner that he did not premeditate the rapes,*fn4 the examiner expressed doubt that Davis was telling the truth:

It is unlikely that Mr. Davis was fully disclosing during the present interview in regard to his involvement in the instant offense. Crime scene analysis, his having used a weapon in one attack and having multiple elderly victims suggests more premeditation than was described [by Davis].
(Lodgment No. 1 at 176.) In addition, the examiner notes the following:
[Davis was] introduced into the crime of burglary by a gang member just prior to returning to San Diego at age fourteen. There had been other incidents of contact with law enforcement in San Diego including curfew violation, shoplifting and firing of a BB gun toward an older female. Records indicate he was notably defiant of authority and argumentative when contact with law enforcement was made. Records indicated probation management had not been successful.
(Lodgment No. 1 at 171.)

  This Court accordingly finds that the 1999 psychological report does not contain information that would have changed Judge Castro's determination that Davis was unfit for juvenile court based on his degree of criminal sophistication.

  2. Whether Davis Can Be Rehabilitated Prior to the Expiration of the Juvenile Court Jurisdiction

  Regarding the prospect of Davis' rehabilitation, Judge Castro stated:

As to (B), whether [Davis] can be rehabilitated prior to the expiration of the juvenile court jurisdiction, [Davis'] sexual behavior is deviant in the extreme. The crimes charged, if true, which the court must assume are true for purposes of today's hearing, show a strong and abiding desire to rape women who are roughly six or seven times his age.
When the probation officer conducted a screen on [Davis'] case with the California Youth Authority ["CYA"], Officer Bley stated that should [Davis] be committed to CYA, he would most likely spend four years in the institution.
Mr. Bley further stated that he would have to participate in a sex offender counseling and a victims' impact course in order to be paroled.
[Davis'] parole age could last out until age 25.
Officer Bley further stated to the probation officer that not all sex offenders would necessarily be eligible for the long-term sex offender program conducted at Nellis.
The Court has considered the extremely serious nature of the crimes perpetrated by [Davis], which involve not only the use of a deadly weapon, but also inflicted great bodily injury on individual victims, both physically and emotionally. The physical and emotional injury was inflicted on elderly, fragile women. Of additional concern for [Davis'] rehabilitative potential is that one must consider the fact that prior to this offense [Davis] was not in compliance with his court orders and continued . . . [his] law-violating behavior.
Of great concern to this court, as an additional item in assessing [Davis'] personal rehabilitation potential, is the fact that there was little or no expression of remorse for the victims involved in this type of criminal behavior.
And I do consider . . . the fact that you said he denies that he was involved. I considered that.
During the visits and interviews with [Davis], the probation officer frequently directed [Davis] not to discuss the offense, as defense counsel instructed.
Frequently, [Davis] would attempt to vent his emotional feelings toward the criminal justice system.
It should be noted that [Davis] is well-versed with the alleged charges and at no time did he ever even vaguely express any interest in the injuries of the victims. His only concern at the time was his unhappiness with the juvenile court system and the attorneys who, he felt, were not in full compliance with his wishes in trying to get him released from juvenile hall.
Without question, without any type of empathy or remorse for the victims, rehabilitation would be rather difficult.
[Davis] has been caught in the past for other crimes and this is — this did not prompt him to take advantage of the services offered to him to change his life.
[Davis] had denied all responsibility for these crimes, even after being confronted with the fingerprint evidence that places him at the scene.
As to (B), the finding: The court finds that in balancing and considering what has been proposed or submitted as mitigating and extenuating circumstances, that they do not rebut the presumption of unfitness by a preponderance of the evidence, therefore, as to criteria (B), the court finds that [Davis] is unfit and therefore is not amenable to the juvenile court law.
(Lodgment No. 4 at 4-8.)

  There are a number of mitigating factors contained in the 1999 psychological report regarding the likelihood of rehabilitation. For example, the examiner revealed that Davis was sexually abused by an uncle at a young age. (Lodgment No. 1 at 171). Although this Court recognizes that this incident could be at the root of Davis' criminal background, it does not necessarily indicate that Davis would be susceptible to rehabilitation. In fact, the examiner indicated that Davis' emotional issues were so great that he was unable to change his behavior.

 

While [Davis] desires to conform and control his behaviors, he is unable to do so because of a lack of psychological stability. [Davis] would likely be described as being unpredictable and emotional as he vacillates between being self-devaluing, resentfully passive and then aggressive with retaliatory intent.
(Lodgment No. 1 at 176.) The Court accordingly finds that the data contained in the 1999 psychological report would not have changed Judge Castro's determination that Davis was unfit for juvenile court based on his likelihood of rehabilitation.

  3. Davis' Previous Delinquent History

  Regarding Davis' previous delinquent history, Judge Castro said:

As to (C), [Davis'] previous delinquent history, he first came into the San Diego County juvenile justice system in 1997. The court has not viewed his prior record as extensive or serious. I don't know if anything occurred prior to the time that he came to the state of California, but I can only go on what has been presented to me by the probation department.
Finding as to criteria (C): The court finds that [Davis] has met the burden of proving fitness under the criteria of Welfare and Institution Code § 707(D)(C).
(Lodgment No. 4 at 8.)

  The 1999 psychological report does not discuss Davis' previous delinquent history in detail, other than to mention Davis' previous burglary, curfew violation, shoplifting and firing of the BB gun. (Lodgment No. 1 at 171.) However, it appears that Judge Castro was not aware of Davis' prior burglary, as he stated that he was not aware of any criminal act occurring before Davis came to San Diego.*fn5 On the basis of Davis' curfew violation, shoplifting and firing of the BB gun, Judge Castro found that Davis was fit for juvenile court as to his previous delinquent history. If anything, the evidence of Davis' prior burglary makes it less likely that Judge Castro would have found for Davis on this criterion.

  This Court accordingly finds that it is unlikely anything contained in the 1999 psychological report would have helped Davis at his fitness hearing as to his previous delinquent history.

  4. The Success of Previous Attempts by the Juvenile Court to Rehabilitate Davis

  Regarding the juvenile court's success at previous rehabilitation attempts, Judge Castro said:

Criteria (D), success of previous attempts by the juvenile court to rehabilitate [Davis]: [Davis] has had the benefit of previous attempts by the juvenile — by the probation department and the juvenile court to provide him with an opportunity to rehabilitate himself and change his pattern of delinquency.
[Davis] was initially adjudged a ward of the court on December 30, 1997. It should be noted that the alleged offenses initially occurred within a three-week period of time prior to his dispositional hearing and had continued through for at least four months as to the last reported rape which occurred in March of 1998.
It is reasonable to say that the previous attempts by the court to rehabilitate [Davis] have not been successful. He committed the present offenses while on juvenile probation.
In the past, he had been ordered to perform community service work. He had been ordered to attend a counseling and educational program, and he'd been committed to the "Breaking Cycle" program. For the record, it's my understanding that the "Breaking Cycle" program is supposed to be one of the best programs that the juvenile court has for youngsters — available for youngsters. All of these efforts have not only been unsuccessful at rehabilitating [Davis], but have also failed to prevent [him] from committing more serious crimes while under the care of the juvenile court and the probation department.
Finding as to Criteria (D): The court finds, in balancing and considering what has been proposed and submitted in mitigating and extenuating circumstances, that they do not rebut the presumption of unfitness by a preponderance of the evidence. Therefore, as to Criteria (D), the court finds [Davis] is unfit and therefore is not amenable to the juvenile court law.
(Lodgment No. 4 at 8-9.)

  The 1999 psychological report does not reveal any success in the juvenile court's previous attempts to rehabilitate Davis. This Court accordingly finds that the information contained within the report would not have made a difference at Davis' fitness hearing as to this criterion.

  5. The Circumstances and Gravity of the Offenses

  Regarding the circumstances and gravity of the offense, Judge Castro said:

As to Criteria (E), the circumstances and gravity of the offense alleged in the petition to have been committed by [Davis]: The allegations against [Davis] are among the most serious offenses reported within the city of El Cajon, given the nature of the rapes, attempted rapes, and break-ins perpetrated upon vulnerable, senior citizens, and, I must add, fragile and vulnerable, senior citizens. There are clear circumstances of aggravation present. [Davis] used a stocking cap to hide his identity in one of the cases. [He] did use a knife in the perpetration of his crimes upon the elderly female victims.
In addition to creating fear, force, and intimidation, the reports indicate that he threatened his victims on several occasions. He injured the victims, especially Mrs. Whippal, whom he almost suffocated. He raped and sodomized Mrs. Whippal.
The finding as to criteria (E): The court finds, in balancing and considering what has been proposed or submitted as mitigating or extenuating circumstances, that they do not rebut the presumption of unfitness by a preponderance of the evidence. Therefore, as to criteria (E), the court finds [Davis] is unfit and therefore is not amenable to the juvenile court law.
(Lodgment No. 4 at 9-10.)

  In the 1999 psychological report, the examiner did not discuss many details of the rapes committed by Davis. Regarding the severity of the rapes, the examiner stated the following:

Mr. Davis evidences tendencies toward sexual masochism. In part, deviant sexuality on his behalf is related to his having been sexually abused as a child by a male relative. His participation in the instant offense appears to have been a reenactment of his own victimization. It is his own personal experience that enabled him to feel compassion and empathy for his victims.
(Lodgment No. 1 at 176.) In addition, the examiner noted that Davis' intelligence was well below the normal range, along with his social skills. Id. However, the report contained no information indicating that Davis' offenses were less severe than reported. This Court accordingly finds that the data contained in the 1999 psychological report would not have changed Judge Castro's determination that Davis was unfit for juvenile court based on the circumstances and the gravity of the offense.

  Based on the foregoing reasons, this Court recommends that Davis' second claim be DENIED.

  5. Recommendation

  After a thorough and independent review of the record in this matter, the undersigned Magistrate Judge finds that Davis has not shown that he is entitled to federal habeas relief under the applicable legal standards. Therefore, this Court hereby recommends that the petition be DENIED WITH PREJUDICE and that judgment be entered accordingly.

  This Report and Recommendation is submitted to the Honorable John A. Houston, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  IT IS ORDERED that no later than September 30, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than October 14, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20050907

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