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Evans v. Tilton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 5, 2009

TERRY DON EVANS, PETITIONER,
v.
JAMES E. TILTON, SECRETARY, CALIFORNIA DOC. NO. 43 DEPARTMENT OF CORRECTIONS AND REHABILITATION, V.M. ALMAGER, WARDEN, EDMUND G. BROWN, ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA, RESPONDENTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Terry Don Evans ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 21, 2007, challenging his San Diego County Superior Court conviction on two counts of bank robbery, and his resultant sentence of 62 years-to-life in state prison. (Doc. No. 26.) Petitioner alleges he is entitled to relief based on violations of his Fifth, Sixth, and Fourteenth Amendment rights stemming from: (1) prejudicial evidentiary rulings, ineffective assistance of counsel and prosecutorial misconduct; (2) insufficiency of the evidence; and (3) pre-charging delay, discriminatory prosecution, suggestive identification procedures, failure to disclose exculpatory and impeachment evidence, suborning of perjury, conflict of interest by and ineffective assistance of defense counsel, admission of his prior convictions while incompetent, and outrageous government conduct. (Doc. No. 26 at 6.1-8.29.) Respondents*fn1 filed a response on June 20, 2008 (Doc. No. 34), and Petitioner filed a traverse on August 29, 2008 (Doc. No. 40).

On November 3, 2008, Magistrate Judge Barbara L. Major issued a Report and Recommendations ("R&R") recommending that the court deny Petitioner's § 2254 petition. (Doc. No. 43.) Petitioner filed objections on November 24, 2008, in which he largely reiterates arguments from his petition and otherwise presents several new conclusory legal theories.*fn2 (Doc. No. 44.)

Having carefully considered the thorough and thoughtful R&R, the record before the court, Petitioner's objections to the R&R, and the applicable authorities, the court ADOPTS the R&R in its entirety.*fn3 The decision of the California Court of Appeal was not contrary to, nor did it involve "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see also Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (court reviews last reasoned state-court decision). Furthermore, the decision was not "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)(2). The court hereby DENIES with prejudice the petition for writ of habeas corpus. (Doc. No. 26.) The Clerk of Court is instructed to enter judgment accordingly.

IT IS SO ORDERED.


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