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