The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION, AND (2) DENYING THE HABEAS CORPUS PETITION
Presently before the Court is Na'il Charles Downey's (Petitioner) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1 ("Petition")*fn1.) The petition challenges the constitutionality of Petitioner's conviction on four grounds. Also before this Court is Magistrate Judge Louisa S. Porter's Report and Recommendation (R&R) advising this Court to deny petition, (Doc. No. 10 ("R&R").) and Petitioner's objections. (Doc. No. 17 ("Objections").) For the following reasons, the Court ADOPTS the report and recommendation and DISMISSES the petition.
Magistrate Judge Porter's R&R contains a thorough and accurate recitation of the facts underlying Petitioner's conviction and state court trial. (R&R, at 1--5.) This Order incorporates by reference the facts as set forth in the R&R.
Petitioner filed the instant petition on May 23, 2007, claiming that (1) the trial court's jury instructions were inadequate, (Petition, at 6 & 8) (2) there was insufficient evidence at trial to support a jury finding of specific intent, (Id., at 7) and (3) that his counsel was constitutionally inadequate. (Id., at 9.) On August 3, 2007, Respondent filed a response to the petition. (Doc. No. 7.) Magistrate Judge Porter issued her R&R recommending that the Court deny the petition on September 24, 2008. (Doc. No. 8.) Petitioner lodged his objections on January 23, 2009. (Doc. No. 17.)
I. REVIEW OF THE REPORT AND RECOMMENDATION
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
II. REVIEW OF HABEAS CORPUS PETITIONS UNDER 28U.S.C.§2254
Magistrate Judge Porter correctly stated the governing legal standard in her R&R. (R&R, at 5--6.) Pursuant to 28 U.S.C. § 2254(a), this Court may only review claims within an application for a writ of habeas corpus based "on the ground that [the Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." Where the Petitioner is "in custody pursuant to the judgment of a State court," this Court may only grant the petition if " the adjudication of the claim [either] (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.
Under § 2254(d)(1), federal law must be "clearly established," that is a holding of a Supreme Court decision as of the time of the state court decision, in order to support a habeas claim. Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision may be "contrary to" clearly established precedent in two circumstances: (1) "if the state court applies a rule that contradicts the governing law set forth in" decisions of the Supreme Court, or (2) where "the state court confronts a set of facts that are materially ...