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Barkacs v. Adams

May 20, 2009

JAMES ROBERT BARKACS, PETITIONER,
v.
D. ADAMS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER OVERRULING PETITIONER'S OBJECTIONS [DOC. # 22]; ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DOC. # 20]; AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Petitioner James Robert Barkacs ("petitioner") is a California state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition has been fully briefed, the Honorable William McCurine, Jr., United States Magistrate Judge, has issued a Report and Recommendation ("report") recommending that this Court deny the petition in its entirety, and petitioner has filed objections thereto. After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court OVERRULES petitioner's objections, ADOPTS the magistrate judge's report, and DENIES the petition for writ of habeas corpus in its entirety.

BACKGROUND*fn1

On October 2, 2003, Calvin Pete, a friend of petitioner, saw petitioner get into a car owned by Pablo Cruz that was parked in the driveway of a motel. As petitioner began to drive away, Cruz jumped onto the driver's side of the car in an attempt to stop petitioner. Cruz fell off the car and petitioner left the scene. Cruz was subsequently transported to a hospital where a trauma surgeon noted that Cruz was unresponsive and had a laceration to the head. On October 9, 2003, Cruz's family requested that his doctors discontinue the aggressive care they had been giving him during the previous week and Cruz died shortly thereafter. An autopsy was performed on October 10, 2003, after which it was concluded that the cause of Cruz's death was blunt force head injuries. On October 3, 2003, Cruz's car was discovered on fire and it was later determined the fire had been deliberately set.

During voir dire at the beginning of petitioner's trial, one of the jurors, Juror No. 5, indicated she had met the prosecutor and the prosecutor's wife during a prior social occasion but stated she did not feel it would affect her ability be partial. After the third day of trial, Juror No. 5 was questioned again as to her association with several law enforcement personnel and prosecutors after another prosecutor brought the issue before the trial court. After examining the juror extensively, the trial court denied the defense request to replace the juror, finding no bias or prejudice. The appellate court affirmed the trial court's decision, finding the juror's association was limited to common membership in the a social club which did not rise to the level of "close friend or relative" requiring disclosure in response to voir dire questioning. Lodgment 2 at 22.

The jury ultimately convicted petitioner on April 6, 2005, of one count of first degree murder with special circumstances that it was committed during the commission of a carjacking, one count of carjacking, and one count of arson. Petitioner appealed his conviction to the California Court of Appeals and, on November 30, 2006, the California Court of Appeals affirmed the conviction in an unpublished opinion. Petitioner subsequently filed a petition for review before the California Supreme Court. On March 14, 2007, the California Supreme Court denied the petition without comment.

On November 7, 2007, petitioner filed the instant petition for writ of habeas corpus, asserting identical claims to those asserted throughout his state court appeals. On May 7, 2008, respondent filed an answer to the petition and, on June 24, 2008, petitioner filed a traverse. The report was issued by the magistrate judge on October 30, 2008. Petitioner filed his objections to the report on November 19, 2008. Respondent did not file a reply to petitioner's objections.

DISCUSSION

1. Legal Standard

The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court "shall 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 [judge]." Id. The party objecting to the magistrate judge's findings and recommendation bears the responsibility of specifically setting forth which of the magistrate judge's findings the party contests. See Fed.R.Civ.P. 72(b). It is well-settled, under Rule 72(b), that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

2. Analysis

The Court has conducted a de novo review of the record in this case, independently reviewing the report and all relevant papers submitted by both parties. In his petition, petitioner presented three grounds for relief, contending that: (1) the trial court violated petitioner's right to due process by denying his request to instruct the jury pursuant to his requested instructions regarding causation and independent intervening acts; (2) petitioner's Fifth, Fourteenth, and Sixth Amendment rights were violated when the trial court denied his request to excuse a juror; and (3) the trial court violated petitioner's right to due process when it allowed the prosecution to question a witness as to whether he was being uncooperative due to fear of retaliation from petitioner's family. Doc. # 1 at 6-8. The magistrate judge found all three claims lacked merit. See Doc. # 20.

Petitioner filed objections to the magistrate judge's report. Although petitioner presents a lengthy discussion concerning the merits of each his claims, none of petitioner's arguments are directed at any specific fact or conclusion made by the magistrate judge in the report. See Doc. # 22. As such, this Court may adopt the magistrate judge's report in ...


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