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DIDYAVONG v. WOODFORD

September 28, 2005.

BOUNTHANOM NA DIDYAVONG, Petitioner,
v.
J.S. WOODFORD, Respondent.



The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND OVERRULING PETITIONER'S OBJECTIONS
INTRODUCTION
Petitioner Bounthanom Na Didyavong ("petitioner"), a state prisoner appearing pro se, filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition as untimely and petitioner filed an opposition. This Court issued an Order granting in part and denying in part respondent's motion to dismiss. The district court granted respondent's motion to dismiss on the violation of state law claim but denied respondent's motion to dismiss on all other claims. Petitioner filed a motion to stay and abeyance and a motion to annex and/or enlarge habeas petition ("petitioner's motions"). Pursuant to 28 U.S.C. § 636(b)(1) and CIVLR HC.2 of this District, the Honorable William McCurine, Jr., United States Magistrate Judge, submitted a Report and Recommendation ("Report"), recommending that petitioner's motions be denied. Having fully reviewed the matters presented, this Court ADOPTS the Report, DENIES petitioner's motion to annex and/or enlarge federal habeas corpus petition and DENIES petitioner's motion for stay and abeyance.

BACKGROUND

  Petitioner along with nearly 20 members of an Asian street gang assaulted David Dobson. Some members of the gang beat Dobson with a lead pipe, a phillips screwdriver and a miniature baseball bat. The remaining members formed a circle shielding the members who were beating Dobson. Dobson died a short time later. Petitioner was convicted by a jury of first degree murder in San Diego County Superior Court on February 7, 2001. He was sentenced to a prison term of twenty-five years to life. The California Court of Appeal affirmed petitioner's conviction on July 30, 2002. At this time, petitioner did not file a petition for review before the California Supreme Court.

  On March 18, 2003, petitioner filed a petition for writ of habeas corpus before the California Court of Appeal, which was subsequently denied on July 8, 2003. Petitioner filed a petition for writ of habeas corpus before the California Supreme Court on September 10, 2003. On November 3, 2003, petitioner filed a document entitled "Request to Amend and Clarify Pending Habeas Petition and/or Consolidate Clarified Federal Constitutional Claims in Order to Properly Exhaust State Court Remedies in Case No. S118914" along with a proposed amended petition in the California Supreme Court.

  The instant petition was filed on November 4, 2003. Respondent's motion to dismiss was filed on February 6, 2004. On February 27, 2004, petitioner filed an opposition to respondent's motion and a request to hold the petition in abeyance pending the California Supreme Court's ruling on his habeas petition which was filed on September 10, 2003. On February 8, 2005, petitioner filed a motion to annex and/or enlarge petition. Magistrate Judge McCurine's Report was filed on July 28, 2005. Petitioner filed his objections to the Report on August 26, 2005. No reply to petitioner's objections were filed.

  DISCUSSION

  1. Standard of Review

  The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or part, the findings or recommendation made by the magistrate [judge]." It is well settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

  2. Magistrate Judge's Findings

  The Report addresses petitioner's motions to include ten additional claims to his habeas petition. The Magistrate Judge found that all ten of petitioner's new claims were untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), none of the claims related back to the date of the original pleading and petitioner's circumstances did not warrant equitable tolling. See Report at 8. In addition, the Magistrate Judge found petitioner's claims of ineffective assistance of counsel ("IAC") and delay resulting from his mental condition were not enough to excuse the procedural bar. As such, the Magistrate Judge determined petitioner's arguments were not enough to demonstrate cause and prejudice to excuse the default or show that a miscarriage of justice will occur if petitioner's new claims are not heard. See Id.

  3. Analysis

  A. Ineffective Assistance of Appellate Counsel

  Petitioner objects to the Magistrate Judge's finding of procedural default and contends he should be excused from the default as he was prejudiced by ineffective appellate counsel. See Obj. at 2. Petitioner argues that his appellate counsel was ineffective as she failed to investigate and raise on appeal his additional claims. See Id. The Report analyzed petitioner's IAC claim under Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001). Hasan permits IAC claims only if the petitioner obtained facts in support of the IAC claim after completion of direct review. See Id. In the instant case, the Magistrate Judge concluded that petitioner was aware of the allegedly ineffective and prejudicial acts prior to completion of direct review. See Report at 10. Upon review of the record, this Court finds petitioner has failed to allege facts showing that the ...


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