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CUNNINGHAM v. HALL

October 19, 2005.

LAFAYETTE CUNNINGHAM, Petitioner,
v.
JAMES E. HALL, Warden, and Bill LOCKYER, Attorney General of the State of California, Respondents.



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

ORDER (1) OVERRULING PETITIONER'S OBJECTIONS; (2) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (3) DENYING PETITIONER'S MOTION FOR JUDICIAL NOTICE; AND (4) DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Lafayette Cunningham ("Petitioner"), a state prisoner appearing pro se, has filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, the Honorable Leo S. Papas, United States Magistrate Judge, submitted a Report and Recommendation ("Report"), recommending that the instant Petition be denied in its entirety. Petitioner filed Objections to the Report. Respondent did not file a Reply to Petitioner's Objections. Having fully reviewed the matters presented, this Court OVERRULES Petitioner's Objections, ADOPTS the Report, DENIES the Petition for writ of habeas corpus relief and DENIES the Motion for Judicial Notice. BACKGROUND

On March 18, 2001, the California Superior Court sentenced Petitioner to state prison for nine years after being convicted for possession and sale of cocaine. Lodg. No. 1 at 84. The evidence presented that resulted in Petitioner's conviction included an informant's testimony and a videotape from a camera attached to the informant's clothing during the drug transaction. Lodg. No. 2 at 2-3. On August 7, 2002, the California Court of Appeal affirmed the judgment on direct appeal. Lodg. No. 2. The California Supreme Court denied a petition for review on October 16, 2002. Lodg. No. 4. Petitioner's writ of habeas corpus filed in the California Supreme Court was denied on July 14, 2004. Lodg. No. 6. Petitioner filed the instant petition on August 27, 2004. Doc. No. 1. Respondent filed an Answer on November 24, 2004 (Doc. No. 12), and Petitioner filed a Traverse on February 2, 2005. Doc. No. 18. In his petition, Petitioner alleged: (1) actual innocence; (2) ineffective assistance of counsel; (3) prosecutorial misconduct and fundamental unfairness; (4) erroneous denial of a Marsden motion seeking self-representation; and (5) the cumulative affect of trial errors caused a fundamentally unfair trial. Doc. No. 1. Magistrate Judge Papas' Report, recommending that the instant Petition be denied in its entirety, and that Petitioner's Motion for Judicial Notice be denied, was filed on March 3, 2005. Doc. No. 19. Petitioner filed his Objections to the Report on April 1, 2005. Doc. No. 20. No Reply to the Petitioner's Objections was filed.

  DISCUSSION

  1. Legal Standard

  a. Scope of Review of Magistrate Judge's Report and Recommendation

  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 a 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).

  b. Scope of Review of Federal Habeas Petitions

  Federal habeas review is granted only if the state court's denial of relief: (1) resulted in a decision that was either "contrary to," or was an "unreasonable application" of, "clearly established federal law" as set forth by the United States Supreme Court; or (2) was based on an "unreasonable determination" of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254.

  2. Analysis

  The Magistrate Judge's Report found that Petitioner is not entitled to habeas relief as to any claim presented by the Petitioner. Furthermore, the court found that Petitioner failed to make a sufficient showing in regards to his request to expand the record with his Motion for Judicial Notice. Report at 31. Therefore, the Magistrate Judge recommended that both the Petition and the Motion for Judicial Notice be denied. On April 1, 2005, Petitioner filed an Objection to the Magistrate Judge's Report.

  After reviewing Petitioner's Objection, the Court finds that Petitioner does not specifically object to the Magistrate Judge's findings and conclusions as to his first, third, or fifth claim. However, the Court finds that Petitioner does specifically object to the Magistrate Judge's findings and conclusions as to his second and fourth claims and the recommendation that Petitioner's Motion for Judicial Notice be denied.

  a. Claims One, Three, and Five

  As to claim one, the Magistrate Judge found that Petitioner does not satisfy the requirements of demonstrating a claim of actual innocence, under Schlup v. Delo, 513 U.S. 298 (1995), because he relies only on evidence which was either actually produced at trial or was available at trial but not produced. Report at 8. The Magistrate Judge further found that Petitioner was attempting to present a freestanding claim of actual innocence, which is not cognizable on a federal habeas Petition, except perhaps in a capital case where there is no state avenue open to process the claim. See Report at 8, citing Herrera v. Collins, 506 U.S. 390 (1993). Thus, the Magistrate Judge found that Petitioner's first claim fails. As to claim three, the Magistrate Judge found that Petitioner did not allege prosecutorial misconduct of sufficient significance to result in denial of his fundamental right to a fair trial. See Report at 16, citing Greer v. Miller, 483 U.S. 756 (1987). For example, the Magistrate Judge found that "[t]he prosecution was under no duty to discover the identity of the people in the yard and turn that information over to the defense, or to independently determine whether, in the prosecutor's opinion, the audio portion of the videotape, which defense counsel could just as easily listen to, contained exculpatory evidence." Report at 20. Therefore, the Magistrate Judge found Petitioner's third claim to be without merit. Report at 22. As to claim five, the Magistrate Judge found that the cumulative error doctrine, under U.S. v. Frederick, 78 F.3d 1370 (9th Cir. 1996), does not apply in that there were no errors by the state court to accumulate. Report at 26. Furthermore, under the cumulative error doctrine, the defendant is more likely to be prejudiced if the government's case is weak. See Report at 26, citing Frederick, 78 F.3d 1370. The Magistrate Judge also found ...


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