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BROWN v. SHEPARD

United States District Court, S.D. California


September 21, 2005.

ROY LEE BROWN, Petitioner,
v.
MARK SHEPARD, Acting Warden, Respondent.

The opinion of the court was delivered by: NAPOLEON JONES, District Judge

ORDER:

(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.

  Legal Standard

  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. 1989).

  Discussion

  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.

  Conclusion and Order

  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.

  IT IS SO ORDERED.

20050921

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