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
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.
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.
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.
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 ...