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DAVIS v. LAMARQUE

November 15, 2005.

BAYARD DEVELL DAVIS, Petitioner,
v.
A.A. LAMARQUE, Warden, et al., Respondents.



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

ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING REPORT AND RECOMMENDATION; AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
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. Petitioner also filed an amendment to his petition, containing two new claims in addition to those presented in his original petition. Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, the Honorable Jan M. Adler, United States Magistrate Judge, submitted a Report and Recommendation ("report"), recommending that the claims presented in petitioner's original petition be denied and a second Report and Recommendation ("second report"), recommending petitioner's two additional claims be denied. Petitioner filed objections to both the report and the second report. Respondents did not file a reply to petitioner's objections to either report. Having fully reviewed the matters presented, and for the reasons set forth below, this Court OVERRULES petitioner's objections, ADOPTS the Reports, and DENIES the petition for writ of habeas corpus on the merits. BACKGROUND

On April 14, 1999, petitioner pled guilty to four counts of first degree residential burglary, one count of forcible rape, one count of forcible sodomy, two counts of assault with a deadly weapon, one count of wilful cruelty to an elder adult, one count of assault with intent to commit rape, and one count of wilful cruelty to an elder adult under conditions likely to cause great bodily injury or death. On May 27, 1999, petitioner was sentenced to a prison term of fifty-three years, eight months to life.

  Petitioner's judgment was affirmed by the California Court of Appeal on October 25, 2001. The California Supreme Court denied petitioner's petition for review on January 3, 2002. A remittitur was issued on January 7, 2002.

  The instant petition was filed on March 3, 2003. Respondents filed an answer to the petition on June 18, 2003. On October 17, 2003, Magistrate Judge Adler issued a report recommending that the claims presented in the original petition be denied. On November 6, 2003, petitioner filed objections to the report. This Court, on February 12, 2004, after determining that petitioner's objections contained new claims that had not yet been exhausted in the state court, presented petitioner with four options for disposition of the newly presented claims. This Court subsequently granted petitioner's motion to stay the instant proceedings while he exhausted his new claims in the state court, staying the proceedings until March 9, 2004, and later extending the stay until December 9, 2004.

  After petitioner notified the Court that his new claims had been exhausted, Judge Adler directed petitioner to file an amended petition. Petitioner filed, on March 21, 2005, an amendment to his petition, alleging the two recently exhausted additional claims. On May 19, 2005, respondents filed a motion to dismiss, along with an answer to the new claims. Judge Adler issued a second report, on September 8, 2005, recommending the new claims be denied on the merits. Petitioner filed objections to the second report on September 19, 2005. No reply to petitioner's objections was filed by respondents. 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 a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. 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. See Thomas v. Arn, 474 U.S. 140, 153 (1985).

  2. Analysis

  Petitioner's original petition contains two claims for relief: (1) that petitioner was denied effective assistance of trial counsel during plea and sentencing proceedings; and (2) that petitioner's sentence constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Petitioner's amendment alleges two additional claims: that he was denied effective assistance of trial counsel (1) based on counsel's failure to appear personally in certain court proceedings; and (2) based on counsel's failure to present petitioner's psychiatric report or mental information in the juvenile court proceedings. Judge Adler concluded, in both reports, that all of petitioner's claims are meritless and, therefore, should be denied.

  In his original petition, petitioner argues that his trial counsel was ineffective because he advised petitioner to reject a more advantageous plea offer, failed to vigorously advocate on petitioner's behalf at sentencing, and failed to properly explain in detail to the trial court mitigating factors on plaintiff's behalf. Petitioner also argues, in his original petition, that his sentence constitutes cruel and unusual punishment. Judge Adler found that petitioner's ineffective assistance of counsel claims were refuted by the record and petitioner failed to prove he was prejudiced by counsel's alleged errors. Judge Adler further found petitioner's cruel and unusual punishment argument lacked merit. Petitioner presents no objections to Judge Adler's findings and conclusions regarding these two claims.

  This Court's independent review of the record, the pleadings presented by the parties and judge Adler's report, reveals that Judge Adler provided a thorough and cogent analysis of the claims presented. This Court, therefore, finds that Judge Adler's findings and conclusions are not clearly erroneous. Accordingly, this Court adopts the Magistrate Judge's findings and conclusions as to these two claims in toto.

  As to petitioner's two additional claims presented in his amendment, Judge Adler found the new claims also lacked merit. Petitioner presents objections to Judge Adler's findings and conclusions regarding these claims. Specifically, petitioner contends that (a) Judge Adler's findings and conclusions concerning counsel's failure to appear personally at certain court hearings were erroneous; and (b) the Magistrate Judge's findings and conclusions concerning counsel's failure to present his psychiatric report or mental condition in the juvenile court proceedings were erroneous.*fn1

  a. Counsel's Failure to Appear Personally

  Judge Adler found that petitioner's trial counsel's failure to appear at certain court proceedings, allowing an associate to appear in his stead, did not constitute ineffective assistance of counsel because counsel appeared personally at all relevant hearings and his replacement counsel was a practicing attorney with prior criminal experience. See Report at 8-9. Petitioner disagrees with Judge Adler's conclusion in this regard, claiming that he never spoke with the replacement counsel privately and stating he "believe[s] if a so called professional attorney is paid[] for his services, he should perform his full duty, not let someone else do it." Obj. at 1. This Court finds this argument lacks merit, in that petitioner's belief that his counsel acted unprofessionally, without proof that counsel's actions fell below an objective standard of reasonableness, provides an insufficient basis to support an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, ...


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