The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER: (1) ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE; AND (2) DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner Cuztodio Ramirez, a state prisoner proceeding pro
se, petitions this Court for writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging his 1995 conviction and sentence in
San Diego Superior Court. The Honorable Louisa S. Porter, United
States Magistrate Judge, has issued a Report and Recommendation
("R&R") pursuant to 28 U.S.C. § 635(b)(1) and Civ.L.R. HC.2,
recommending that the Court grant Respondent's Motion to Dismiss
the Petition for Writ of Habeas Corpus. The Court has considered
all of the relevant pleadings, the applicable law and the R&R.
For the following reasons, the Court ADOPTS Judge Porter's
recommendation and GRANTS WITH PREJUDICE Respondent's Motion to
Dismiss the Petition for Writ of Habeas Corpus. The Petition for
Writ of Habeas Corpus is DENIED in its entirety. I.
FACTUAL AND PROCEDURAL BACKGROUND
The Court incorporates by reference the factual and procedural
summary as contained in the opinion of the California Court of
Appeal. People v. Ramirez, No. D023310, slip op. (4th Dist.,
Div. 1, August 6, 1996). The factual findings of the State
appellate court are entitled to a statutory presumption of
correctness. See 28 U.S.C. § 2254(e)(1); Parke v. Raley,
506 U.S. 20, 25-26 (1992). Additionally, the Court adopts by
reference the factual summary as contained in Judge Porter's R&R.
A. State Court Proceedings
On February 15, 1995, a jury found Petitioner guilty of selling
a controlled substance in violation of Health & Safety Code §
11352(a) and possession of a controlled substance in violation of
Health & Safety Code § 11350(a). The jury also concluded that
Petitioner suffered three prison priors within the meaning of
Penal Code § 667.5, and three serious or violent felony priors
within the meaning of Penal Code § 667(b) (i) ("strike
priors"). The Superior Court sentenced Petitioner to a term of
twenty-five years to life in prison pursuant to California's
Three Strikes law.
Petitioner then filed a direct appeal in the California Court
of Appeal, asserting that the trial court erred: (1) in admitting
"other crimes" evidence pursuant to Evidence Code § 1101(b); and
(2) in ruling that it did not have the discretion to strike any
of the serious felony prior convictions. On August 6, 1996, the
California Court of Appeal affirmed Petitioner's conviction, but
remanded the case for resentencing. Petitioner did not petition
for review of the affirmance of the convictions. At resentencing
on November 7, 1996, the trial court dismissed the possession
charge and struck the prison priors. However, the court declined
to dismiss the strike priors. Petitioner was resentenced to a
term of twenty-five years to life in prison. Petitioner did not
appeal his resentencing.
After Petitioner was resentenced to a term of twenty-five years
to life in prison, he filed numerous petitions for writ of habeas
corpus in the California Superior Court, the California Court of
Appeal and the California Supreme Court, challenging his 1995
conviction and sentence on various grounds. All of the Petitions
were denied by the California courts. B. Federal Court Proceedings
On July 6, 2004, Petitioner filed the current Petition for Writ
of Habeas Corpus, asserting that he: (1) received ineffective
assistance of trial counsel; (2) was denied confrontation and
cross-examination of his accuser without waiver; (3) received
ineffective assistance of appellate counsel; and (4) was denied a
fundamentally fair appeal and adequate and effective appellate
review related to the merits of the appeal.
On September 27, 2004, Respondent moved to dismiss the
Petition, arguing that the Petition is statutorily barred by the
one year limitations period imposed by the Antiterrorism and
Effective Death Penalty Act; and that if not time-barred, the
Petition should be dismissed for being conclusory, procedurally
defaulted, and failing to state a claim for relief. Petitioner
filed an Opposition to Respondent's Motion to Dismiss on November
15, 2004.
The Magistrate Judge issued the R&R on May 3, 2005,
recommending that the Court grant Respondent's Motion to Dismiss
the Petition for Writ of Habeas Corpus with prejudice on grounds
that the Petition is barred by the one-year statute of
limitations imposed on such petitions.*fn1 On May 31, 2005,
Petitioner filed his objection to the R&R. Respondent filed a
Reply to Petitioner's objections on June 10, 2005.
REVIEW OF R&R: LEGAL STANDARD
The duty of the district judge regarding the review of an R&R
is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1).
Where objections are filed, Section 636(b)(1) directs the
district judge to review de novo "those portions" of the R&R to
which objections have been made. See Hunt v. Pliler,
384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then
accept, reject, or modify, in whole or in part, the magistrate
judge's findings and recommendations. 28 U.S.C. § 636(b)(1). However, as to those portions of the R&R to which no objections
have been made, the district judge may assume the correctness of
the magistrate judge's findings and recommendations. See U.S. v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the
district judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but not
otherwise.") (emphasis in original). See also Thomas v. Arn,
474 U.S. 140, 149-52 (1985) ("It does not appear that Congress
intended to require district court review of a ...