UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 20, 2006
RUSSELL HAROLD MILLER, PETITIONER,
JAMES YATES, ET AL., RESPONDENT.
The opinion of the court was delivered by: Hayes, Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (Doc. # 30) of Magistrate Judge Anthony J. Battaglia, filed on September 8, 2006, recommending that the Court deny Petitioner Russell Harold Miller's Petition for Writ of Habeas Corpus (Doc. # 1).
Petitioner Russell Harold Miller seeks habeas relief pursuant to 28 U.S.C. § 2254, challenging his state court conviction for multiple robberies. Petitioner seeks relief on the grounds that his trial attorney was ineffective under the Sixth Amendment. Specifically, Petitioner argues that his trial attorney improperly, (1) failed to employ an identification expert, (2) failed to introduce a motel receipt to corroborate his alibi defense, (3) failed to prevent the jury from learning of his parole status, and (4) failed to investigate and present evidence of third-party culpability. Petition for Writ of Habeas Corpus at 17-20. The Report and Recommendation recommends denial of the Petition on the grounds that the Petitioner failed to demonstrate that the state court's adjudication of his ineffective assistance claim was contrary to or an unreasonable application of applicable United States Supreme Court precedent. The Report and Recommendation concluded that the state court's adjudication was based on a reasonable determination of the facts. Neither party filed objections to the Report and Recommendation.
STANDARD OF REVIEW
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "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." 28 U.S.C. §636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When no objections are filed, the district court may assume the correctness of the magistrate judge's factual findings and decide the motion on the applicable law. Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001), citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1989). "[A] failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. Barila v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
Petitioner seeks habeas relief on the grounds that his attorney's inadequate representation during trial constituted a violation of Petitioner's right to effective assistance of counsel under the Sixth Amendment. Petitioner argues that his attorney's deficient representation entitles him to a new trial.
In order to prevail on a claim for ineffective assistance of counsel, Petitioner must prove that defense counsel's representation fell "outside the wide range of professional competence," and that the deficient representation prejudiced Petitioner's defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether trial counsel's representation was deficient, a court should consider the representation with a strong presumption that trial counsel's actions resulted from sound strategy. Id. To establish prejudice, a petitioner must show that, absent the deficient representation, the outcome of the case would have been different. Id. at 694.
Petitioner argues that his trial counsel's performance was constitutionally deficient because counsel (1) failed to employ an identification expert, (2) failed to introduce a motel receipt to corroborate his alibi defense, (3) failed to prevent the jury from learning of his parole status, and (4) failed to investigate and present evidence of third-party culpability. On direct appeal, the California Court of Appeal concluded that each of these so-called failures was either a tactical omission by trial counsel, or else would have added little to Petitioner's defense. The California Court of Appeal further concluded that there was strong evidence of Petitioner's guilt, and that cumulatively or individually, none of the alleged failures of defense counsel prejudiced Petitioner.
Pursuant to 28 U.S.C. § 2254(d), an application for a writ of habeas corpus shall not be granted with respect to a claim adjudicated on the merits in a state court proceeding unless the adjudication of the claim,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006). Here, the Magistrate Judge concluded that the decision of the California Court of Appeal was reasonable, not contrary to clearly established federal law, and faithful to Strickland. Report & Recommendation at 11-12. Accordingly, the Magistrate Judge's Report and Recommendation recommends that this Court deny Petitioner habeas relief.
After reviewing the Petition for Writ of Habeas Corpus, the Answer to the Petition, the Report and Recommendation, and the record in this case, the Court concludes that the recommendation of the Magistrate Judge is correct. Petitioner's trial counsel's decisions not to employ identification experts, introduce a motel receipt, or utilize a third party defense were tactical and do not equate to deficient representation. The record shows that trial counsel elected to attack eyewitnesses on cross-examination, rather than call an identification expert. The record also shows that introduction of the motel receipt and or evidence regarding a third party's culpability would have accrued little benefit to Petitioner. In fact, the record reveals that trial counsel did not use a third party culpability defense because Petitioner was the sole suspect, and a potentially culpable third party could not be found.
Finally, there were good reasons for trial counsel's not objecting to evidence that Petitioner was out on parole during the robberies--one being that it might have highlighted negative evidence to the jury--and in any case, Petitioner did not meet his burden to show that the admission of the parole evidence was so prejudicial that it probably affected the verdict.
It is hereby ORDERED that the Report and Recommendation (Doc. # 30) is adopted in its entirety and the Petition for Writ of Habeas Corpus is DENIED (Doc. # 1). The Clerk of the Court shall enter judgment in favor of Respondent.
WILLIAM Q. HAYES United States District Judge
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