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Fernandez v. Martel

March 18, 2009

ALBERTO FERNANDEZ, PETITIONER,
v.
M. MARTEL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION, (2) DENYING THE HABEAS CORPUS PETITION, AND (3) DISMISSING THE CASE WITH PREJUDICE

(Doc. No. 8)

Presently before the Court is Alberto Fernandez'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 two grounds. Also before this Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation (R&R) advising this Court to deny petition, (Doc. No. 8 ("R&R").) and Petitioner's objections.*fn2 (Doc. No. 15 ("Objections").) For the following reasons, the Court ADOPTS the report and recommendation and DISMISSES the petition.

FACTUAL BACKGROUND

Magistrate Judge Bencivengo's R&R contains a thorough and accurate recitation of the facts underlying Petitioner's conviction and those regarding his state court trial. (R&R, at 1--4.) This Order incorporates by reference the facts as set forth in the R&R.

PROCEDURAL HISTORY

Petitioner filed the instant petition on February 15, 2008 in the Eastern District of California, claiming that the state trial court's evidentiary rulings violated his due process rights. (Petition, at 13 & 16.) On May 2, 2008, this case was transferred to the Southern District of California. (Doc. No. 1.) On July 11, 2008, Respondent filed a response to the petition. (Doc. No. 4.) Petitioner filed a motion for extension of time on August 15, 2008 which was granted on August 20, 2008. (Doc. Nos. 6 & 7.) Magistrate Judge Bencivengo issued her R&R recommending that the Court deny the petition on September 22, 2008. (Doc. No. 8.) On October 29, 2008, the Court received Petitioner's objections. (Doc. No. 12.) On December 18, 2008, the Court granted Petitioner leave to file amended objections. (Doc. No. 13.) On February 11, 2009, the Court received Petitioner's amended objections. (Doc. No. 15.)

LEGAL STANDARDS

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 Bencivengo correctly stated the governing legal standard in her R&R, but for the sake clarity, it is restated here. (R&R, at 4--5.) 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 ...


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