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, a prisoner proceeding pro se, filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 27, 2005. Petitioner is currently serving a 13-year sentence for assault in connection with a fight in a San Diego restaurant. Respondent then moved to dismiss the petition. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1, this matter was referred to Magistrate Judge Nita Stormes. On December 8, 2005, Judge Stormes issued her report and recommendations, recommending, among other things, that Respondent's motion to dismiss certain claims as unexhausted be denied. No objections were filed to this report and recommendation, which the Court adopted on January 23, 2006.
Respondent then filed his answer, and Petitioner filed his traverse. Judge Stormes denied Petitioner's request for an evidentiary hearing and issued her report and recommendation (the "R&R") on June 22, 2007, recommending the petition be denied in full. Petitioner filed his objections (the "Objections") to the R&R. Petitioner thereafter twice filed applications requesting leave to file a supplemental petition, both of which were denied.
A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. §636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §636(b)(1). 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).
Petitioner does not object to any of the R&R's factual findings, which are therefore ADOPTED. Petitioner, however, objects to certain portions of the R&R's analysis and legal conclusions. The Court has reviewed all portions of the R&R not objected to and finds them to be correct.
II. Objections to the R&R, and Additional Requests
Petitioner makes three main objections. He attempts to show that: 1) the evidence at trial was insufficient to support his conviction, 2) the testimony of Detective Eric Stafford should not have been admitted, and 3) the R&R should not have determined that certain of his claims were procedurally defaulted. He also renews requests made earlier in the proceedings for appointment of counsel, and requests an evidentiary hearing and oral argument.
A. Sufficiency of the Evidence
Petitioner focuses most of his attention on his objection concerning the sufficiency of the evidence, which bears on his first claim for relief. Petitioner's main argument is set forth in his Objections at 1:24--26, where he asserts the Court must respect his "right to a fair trial with truth in evidence, free from lies and false testimony." Petitioner argues certain witnesses committed perjury, and that the prosecution nevertheless presented their testimony. He points to a substantial portion of the R&R (R&R at 9:22--11:6) as explaining the unreliability of these witnesses.
The portion of the R&R Petitioner cites shows he is objecting to the testimony of David Ulloa, a waiter; Shannon Conley, a restaurant patron; Mallory Meyer, a disc jockey; and Guillermo Ybarra and Jose Luis Manzo, security guards. The same portion of the R&R refers to alibi evidence Petitioner presented at trial to show he was at a practice for a hair show when the assault took place. Petitioner was identified at trial by a number of witnesses as being present in the restaurant and being involved in several altercations, one of which resulted in Ulloa suffering a compound fracture of his arm and being taken away in an ambulance and another of which resulted in a head wound to Manzo.
Petitioner argues that these four witnesses' in-court testimony and identification of Petitioner as the attacker are contradicted by their earlier statements. Ulloa, for example, just before being taken away in an ambulance, gave only a vague description of the man who broke his arm, saying he did not get a good look at the man. (R&R at 9:25--28.) Conley reportedly did not give a description of the attacker. (Id. at 10:3--4.) At the hospital, Manzo was not able to describe his attacker in any great detail and did not mention recognizing him. (Id. at 10:5--7.) Meyer told police he saw the fight but did not get a good look at anyone. (Id. at 10:24--28.) Officer Jason Aguilar's statement, which was admitted by stipulation, said Ybarra told him about the attack but did not describe the attacker. (Id. at 10:28--11:6.) Petitioner therefore argues these witnesses' later identifications of him as the attacker could not be credited.
The R&R has set forth the evidentiary standards and standards for review, which Petitioner does not challenge and which the Court finds correct. (R&R at 16:20--17:26, 18:10--20). The R&R also explains why the witnesses' in-court identification was sufficiently reliable. For example, Manzo testified he was under anesthesia when he was interviewed at the hospital and could not remember giving a description to police. (See id. at 20:17--19.) Ulloa, similarly, was suffering extreme pain from a compound fracture and waiting to be taken to the hospital in an ambulance at the time he gave his initial statement to police. (Id. at 9:24--28.) The officer who questioned Conley merely testified he did not remember her giving a description of the attacker or saying she had seen him before; he was not able to say with certainty that she did not do so. (Id. at 20:21--23.) Conley, by contrast, testified she described the attacker, and "might have" said she had seen him at the bar before. (Id. at 20:19--21.)
Ybarra testified at trial and said he gave a description of the men involved in the fight. (R&R at 21:1--3.) He testified he recognized the attacker from a previous altercation at the restaurant. (Id.) While the parties stipulated Officer Aguilar would have testified Ybarra gave no such description to him, Ybarra spoke to two officers the night of the ...