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Palmisano v. Yates

August 31, 2007

CLAUDIO ANTONIO PALMISANO, PETITIONER,
v.
J. YATES, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Claudio Antonio Palmisano, a state prisoner proceeding pro se filed his petition for writ of habeas corpus on December 5, 2005. He contends he was forced to plead no contest to seven counts of lewd or lascivious acts upon the body of a child owing to the ineffective assistance of his counsel. He argues he was denied assistance of his counsel both at trial and on appeal, and that the prosecution and trial court committed misconduct.

The petition was referred to Magistrate Judge Louisa Porter for report and recommendation pursuant to 28 U.S.C. § 636. Judge Porter issued her report and recommendation (the "R&R") on August 7, 2006, recommending denial of the writ, to which Petitioner filed objections.

I. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection. Moreover, 28 U.S.C. § 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985). The Ninth Circuit has interpreted the language of 28 U.S.C. § 636(b)(1), and determined that the "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The construes pro se habeas filings liberally. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005).

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this case because the Petition was filed after April 24, 1996. Smith v. Baldwin, 466 F.3d 805, 811 (9th Cir. 2006). AEDPA prohibits a federal court from granting a petition of a state prisoner whose claims were adjudicated on the merits in state court, unless the state court decision was contrary to clearly established federal law, or involved an unreasonable application of the facts to such law. Specifically, a federal court can grant habeas relief where a state court's 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). AEDPA also requires deference to the state court's findings of fact, presuming them correct unless the petitioner rebuts them by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

Alleged errors in the application of state law are not cognizable in federal habeas corpus proceedings. Little v. Crawford, 449 F.3d 1075, 1082 n.6 (9th Cir. 2006). Under AEDPA, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). "The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials." Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).

II. Petitioner's Objections

Petitioner took the unusual step of writing his objections into his copy of the R&R and including suggested edits. Nevertheless, the Court has done its best to construe Petitioner's objections liberally. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). In many cases, Petitioner's objections consist merely of suggested rewordings of the R&R to change the result. (See, e.g., Obj. at 14:6--7 (altering "was not deficient" to "was deficient" and "nor did it result in Petitioner entering a plea" to "and resulted in Petitioner entering a plea").) These are generalized objections to the result, not specific objections, and therefore do not require a complete de novo review. Player v. Salas, 2007 WL 935100, slip op. at *2 (S.D.Cal. March 22, 2007); Lynch v. Schriro, 2007 WL 865369, slip op. at *3 (D.Ariz. March 20, 2007). Cf. United States v. State of Wash., 626 F. Supp. 1405, 1492 (D.C.Wash. 1985) (holding certain objections to a special master's report and recommendation "too general to be valid").

Petitioner did not object to the R&R's findings of fact. The Court therefore ADOPTS ...


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