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O'Reilly v. R&R

February 2, 2007

SYLVESTER O'REILLY, PETITIONER,
v.
(1) ADOPTING R&R; AND (2) DENYING PETITION FOR WRIT VINCENT IARIA, ET AL., OF HABEAS CORPUS RESPONDENTS.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER

Before the Court is Respondent Vincent Iaria's ("Respondent") Motion to Dismiss Petitioner Sylvester O'Reilly's ("Petitioner") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. [Doc. Nos. 1, 9, 10.] Magistrate Judge Louisa S. Porter has filed a Report and Recommendation ("R&R") recommending that this Court grant Respondent's Motion to Dismiss. [Doc. No. 17.] To date, Petitioner has filed no objections. The Court has determined that the issues presented below are appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

Background

On April 30, 2001, in San Diego County Superior Court, a jury convicted Petitioner of misdemeanor battery on a police officer, a violation of California Penal Code §§ 242 and 243(b), and resisting arrest, a violation of California Penal Code § 148(a). (See Resp't's Lodg't No. 1.) Petitioner was placed on summary probation for three years under the conditions that he serve forty-five days in the custody of the Sheriff, perform fifteen days in a public service program, and complete a twelve hour anger management course. (See id.)

On May 14, 2001, Petitioner filed a timely Notice of Appeal, directly appealing the verdict to the Appellate Division of the California Superior Court. (See Resp't's Lodg't No. 2.) On July 11, 2002, Petitioner's former counsel filed an abandonment of appeal, and an order of dismissal was issued on July 12, 2002. (See Resp't's Lodg't No. 7 at 1, 2.)

On May 28, 2003, Petitioner's current counsel filed a petition for writ of habeas corpus in the San Diego County Superior Court. (See Resp't's Lodg't No. 6.) Petitioner argued that his former appellate attorney had rendered ineffective assistance of counsel by abandoning Petitioner's appeal. (See Resp't's Lodg't No. 6 at 3.) On June 5, 2003, the court denied the petition, finding a failure to establish a claim of ineffective assistance of counsel, as well as procedural deficiencies. (See Resp't's Lodg't No. 7.) However, relief was granted on Petitioner's motion to recall the remittitur and the appeal was reinstated on July 2, 2003. (See Resp't's Lodg't No. 10 at 2.)

On October 8, 2003, Petitioner filed Appellant's Opening Brief in the direct appeal, and Respondent filed his brief on November 12, 2003. (See Resp't's Lodg't Nos. 3, 4.) On December 12, 2003, the Appellate Division of the Superior Court unanimously affirmed the lower court's judgment without comment. (See Resp't's Lodg't No. 5.) Petitioner sought no further direct review.

On November 30, 2004, Petitioner's counsel filed a second habeas petition in the San Diego County Superior Court. (See Resp't's Lodg't No. 8.) Petitioner's first ground contended that his conviction and sentence were unlawful and in violation of the Fourth, Sixth, and Fourteenth Amendments of the U.S. and California Constitutions, because his trial counsel rendered ineffective assistance in failing to (1) move for a judgment of acquittal at the close of the prosecution's case-in-chief and at the close of the presentation of evidence, and (2) move to suppress the observations of the arresting officers during Petitioner's allegedly illegal arrest. (See Resp't's Lodg't No. 8 at 3.) Petitioner's second ground alleged a due process violation in that there was insufficient evidence to sustain a conviction given that the arresting officers were not engaged in lawful performance of their duties. (See id. at 4.) On January 21, 2005, the Superior Court denied the petition on both substantive and procedural grounds. (See Resp't's Lodg't No. 9 at 2-3.)

On March 11, 2005, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District, relying upon three grounds that were substantively equivalent to the two claims in the previous habeas petition. (See Resp't's Lodg't No. 10 at 4-5.) On April 25, 2005, the court denied the petition because Petitioner failed to provide an adequate record for review. (See Resp't's Lodg't No. 12 at 1.) The court further noted that the issues raised in the petition had already been raised and rejected on appeal, and therefore Petitioner could not revisit those claims in a habeas petition. (See id. at 1-2)

On August 30, 2005, Petitioner filed a writ of habeas corpus in the California Supreme Court. (See Resp't's Lodg't No. 13.) Petitioner alleged two grounds that were substantively equivalent to the three grounds alleged in the habeas writ filed in the California Court of Appeal. (See id. at 5-6.) On October 12, 2005, the California Supreme Court summarily denied the petition, exhausting Petitioner's state court remedies. (See Resp't's Lodg't No. 15.)

On January 27, 2006, Petitioner filed the instant Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of California, asserting three grounds. [Doc. No. 1.] First, Petitioner alleges violations of the Sixth and Fourteenth Amendments of the U.S. and California Constitutions because he was denied the effective assistance of counsel when counsel failed to move for a judgment of acquittal at the close of the prosecution's case-in-chief and at the close of all the evidence. (See Pet. at 6.) Second, Petitioner alleges violations of the Fourth, Sixth, and Fourteenth Amendments of the U.S. and California Constitutions because he was denied the effective assistance of counsel when counsel failed to move to suppress the observations of the arresting officers pursuant to Petitioner's allegedly illegal arrest in his home. (See id. at 7.) Finally, Petitioner alleges a due process violation under the Fifth and Fourteenth Amendments to the U.S. Constitution in that the arresting officers were not engaged in the lawful performance of their duties, and therefore there was insufficient evidence to sustain a conviction. (See id. at 8.)

On October 5, 2006, Magistrate Judge Porter issued an R&R advising this Court to grant Respondent's Motion to Dismiss, and dismiss this action with prejudice. [Doc. No. 17.] To date, no objections to the R&R have been filed.

Legal Standard

The duty of the district court in connection with a magistrate judge's report and recommendation in habeas cases is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. ยง 636(b)(1). When an objection is made, the court must make a de novo determination as to those parts ...


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