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BROWN v. SHEPARD
September 21, 2005.
ROY LEE BROWN, Petitioner,
MARK SHEPARD, Acting Warden, Respondent.
The opinion of the court was delivered by: NAPOLEON JONES, District Judge
(1) ADOPTING REPORT AND RECOMMENDATION; and
(2) DENYING RESPONDENT'S MOTION TO DISMISS.
Roy Lee Brown ("Petitioner"), a state prisoner proceeding pro
se, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 alleging: (1) ineffective assistance of trial
counsel for failing to call a critical eyewitness to the stand;
(2) violation of due process for failure of the trial court to
properly instruct the jury; and (3) ineffective assistance of
trial counsel for failing to ensure Petitioner's presence while
testimony was read back to the jury and engaging in an informal
discussion with the court off the record. [Doc. No. 1.] Mark
Shephard ("Respondent") has filed a Motion to Dismiss ("Motion"),
arguing that the Petition contains unexhausted claims. [Doc. No.
55.] Respondent contends that claim one and portions of claim 3 are unexhausted. [Id.] Petitioner has filed an Opposition to
Respondent's Motion. [Doc. No. 58.]
On August 5, 2005, Magistrate Judge McCurine issued a report
and recommendation advising that Defendants' Motion to Dismiss be
denied. [Doc. No. 63.] The report and recommendation required
that objections be submitted to the Court no later than September
1, 2005. To date, no objections have been filed and neither party
has requested an extension of time. The magistrate judge's report
and recommendation is now before the Court.
The duty of the district court in connection with a magistrate
judge's report and recommendation is set forth in Rule 72(b) of
the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1).
If the parties submit objections to the report and
recommendation, the court must make a de novo determination as
to those parts of the report and recommendation to which
objection is made. United States v. Raddatz, 447 U.S. 667, 676
(1980). Where no objections are filed, the district court may
assume the correctness of the magistrate judge's factual findings
and decide the motion on the applicable law. See Campbell v.
United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974).
Under such circumstances, "a failure to file objections only
relieves the trial court of its burden to give de novo review
to factual findings; conclusions of law must still be reviewed
de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.
There being no objections, the Court assumes the correctness of
the facts as set forth in the report and recommendation. After
conducting a de novo review of the magistrate judge's conclusions
of law, the Court FINDS that the report and recommendation
correctly concludes that Petitioner has exhausted his available
state judicial remedies with respect to the three claims in the
petition. Claim one is exhausted due to state procedural bar and
therefore meets the technical requirements of exhaustion. See
Cassett v. Stewart, 406 F.3d 614, 621 n. 5, (9th Cir. 2005).
Respondent concedes that claim two is exhausted. (MTD Mem. at 6.)
Claim three is exhausted since it was formerly presented to the
California Supreme Court in Case No. S061403. (Lodgement No. 8 at 3-5.) Accordingly, the Court FINDS that the
report and recommendation accurately states and applies the law.
For the reasons stated above and in the report and
recommendation, the Court ADOPTS the report and recommendation
in its entirety and DENIES Respondent's Motion to Dismiss.
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