The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER (1) OVERRULING PETITIONER'S OBJECTIONS; (2) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Travis Ray Thompson ("Petitioner) a prisoner appearing pro se, has filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. §636(b)(1) and CivLR HC.2. The Honorable Nita L. Stormes, United States Magistrate Judge, submitted a Report and Recommendation ("Report") on March 21, 2007, recommending that the instant Petition be denied in its entirety. Petitioner filed Objections to the Report on June 7, 2007. 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, and DENIES the Petition for writ of habeas corpus relief on the merits.
On January 5, 2004, Petitioner was charged with assault with a deadly weapon by means likely to produce great bodily injury, a felony in violation of Cal. Penal Code section 245(A)(1). (Lodgment No. 1, Clerk's Tr. at 7). The information alleged that Petitioner personally used a deadly weapon, a razor and/or shank, in the commission of the offense and had two prior felony convictions. (Id. at 8-9)
Petitioner was found guilty by a jury, which also made a true finding the Petitioner personally used a deadly weapon during the assault on a fellow inmate. On the same day, the trial court found it to be true that Petitioner had two prior serious felony convictions. (Id. at 521). On July 27, 2004, the trial court sentenced Petitioner to an indeterminate term of twenty-five years to life for the assault and a determinate term of five years for the prior serious felony convictions. (Lodgment No. 5, People v. Thompson, No. D044829, slip op., at 18 (Cal. Ct. App. August 12, 2005.)
Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One, raising the same claims as he presents before this Court, with the exception of ineffective assistance of counsel. Petitioner also filed a petition for habeas corpus on May 5, 2005. The petition was denied on June 20, 2005 for failing to state a prima facie case. (Lodgments Nos. 6 and 7). Petitioner's conviction was affirmed on August 12, 2005 (Lodgment No. 5). Petitioner's subsequent petition for review to the California Supreme Court was denied on November 16, 2005. (Lodgment No. 9, People v. Thompson, No. S137191, slip op (Cal. Nov 16, 2005.) A petition for review of the habeas filed on June 12, 2006, was denied on July 26, 2006. (Lodgment No. 15, In Re Thompson, No. S144233, slip op. (Cal. July 26, 2006).
Petitioner filed the current Petition for Writ of Habeas Corpus on August 28, 2006. (Doc. No. 1). Respondent filed an Answer on October 26, 2006. (Doc. No. 6). Petitioner filed a Traverse on February 27, 2007. (Doc. No. 14). Magistrate Judge Stormes Report recommending the instant Petition be denied in its entirety was filed on March 21, 2007. (Doc. No. 15). Petitioner filed his Objections to Report and Recommendation on June 7, 2007. (Doc. No. 19). No Reply to the Objections was filed.
Petitioner claims his federal constitutional rights were violated on four grounds: (1) ineffective assistance of counsel; (2) revocation by the trial court of his right to self-representation; (3) restriction of his evidence by the trial court; and (4) jury misconduct. (Doc. No. 15 at 11-12).
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 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 [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 ...