The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS [DOCS. # 50, 71]; OVERRULING PETITIONER'S OBJECTIONS [DOCS. # 58, 73]; DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING [DOC. ) # 66] AND DENYING PETITION ) FOR WRIT OF HABEAS CORPUS IN ITS ENTIRETY
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Honorable William McCurine, Jr., United States Magistrate Judge, issued two separate reports and recommendations recommending that the instant petition, as well as petitioner's motion for an evidentiary hearing, be denied. Petitioner has filed objections to each of the magistrate judge's reports. After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court ADOPTS the magistrate judge's recommendations in toto, OVERRULES petitioner's objections; DENIES petitioner's motion for an evidentiary hearing, and DENIES the petition for writ of habeas corpus in its entirety.
After waiving his right to jury trial on his prior convictions, petitioner was convicted on March 20, 2003, after a jury trial, of one count of second degree robbery stemming from an altercation that occurred between petitioner, a companion and two Walmart employees outside a Walmart store in San Diego after petitioner and a companion were seen placing an item in petitioner's pocket in the store and leaving without paying for it.*fn2 On March 24, 2003, petitioner waived his right to a court trial on the prior convictions and admitted he had suffered prior felony convictions, prison priors, serious felony prior convictions, an a strike prior conviction. On October 3, 2003, petitioner was sentenced to a fifteen year prison term.
That same day, petitioner filed an appeal of his conviction and concurrently filed a petition for writ of habeas corpus before the California Court of Appeal. The appeal was affirmed and the state petition was denied in an unpublished decision filed on February 18, 2005. Petitioner then filed a petition for review before the California Supreme Court, which was denied on May 11, 2005.
Petitioner filed his first federal habeas petition on July 18, 2005, but that petition was dismissed without prejudice on November 28, 2005, in order to allow petitioner the opportunity to exhaust new claims. See Case No. 05CV1449 LAB(NLS). On July 31, 2006, petitioner filed his second federal habeas petition before this Court, which contained both exhausted and unexhausted claims. The petition was stayed so that petitioner could present his unexhausted claims to the state court.
Petitioner, on April 12, 2007, filed an amended petition for writ of habeas corpus*fn3 along with a second motion seeking a stay of proceedings pending the outcome of a state court petition containing two new claims presented in his amended petition. This Court, on August 20, 2007, granted petitioner's second motion and stayed the petition until the state court issued its ruling on the petition on October 31, 2007.
After the petition was fully briefed, the magistrate judge issued a report and recommendation on May 16, 2008, recommending the petition be denied in its entirety. On June 23, 2008, petitioner filed objections to the May 16, 2008, indicating, among other things, that one of the claims presented in the petition, a false evidence claim, was not addressed in the answer filed by respondent nor the magistrate judge's report. See Doc. # 58. In addition, on July 9, 2008, petitioner filed a supplemental response to the report containing further objections to the magistrate judge's findings and conclusions. See Doc. # 61. On December 1, 2008, this Court, in an abundance of caution, remanded the matter back to the magistrate judge to address the omitted false evidence claim. See Doc. # 62. After the parties filed supplemental briefs addressing the false evidence claim, the magistrate judge issued a supplemental report, on March 16, 2009, recommending that the false evidence claim, presented as part of claim eleven in the amended petition and presented more fully in a supplemental document submitted by petitioner on remand, as well as the previously addressed claims presented in the petition and the amended petition be denied. See Doc. # 71. Petitioner filed objections to the magistrate judge's supplemental report on April 16, 2009. No reply to the objections has been filed.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in Title 28, United States Code, Section 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, 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. Thomas v. Arn, 474 U.S. 140, 153 (1985).
Petitioner presents eighteen claims for habeas relief in his petition, amended petition and supplement to his amended petition. The claims can be placed into five categories: (1) jury issues (claims one, two, three and twelve); (2) sentencing errors (claims seven, eight, nine, and ten); (3) ineffective assistance of trial and appellate counsel (claims six, eleven, thirteen, fourteen, fifteen, sixteen, and seventeen); (4) the newly addressed false evidence claim (claim eighteen); and (5) claims that are not cognizable on federal habeas review (claims four and five). In both reports, the magistrate judge addressed each claim in depth and concluded that none of petitioner's claims had merit. Petitioner, in his objections and supplemental objections, presents both specific and general objections to the magistrate judge's findings and conclusions.
Petitioner's claims one, two, three and twelve allege the trial court erred by (a) denying petitioner a further hearing regarding possible juror misconduct and coercion [claims one and twelve]; (b) instructing the jury with a misleading definition of the term "force" [claim two]; and (b) failing to give an instruction to the jury on the lesser included offense of petty theft [claim three].
Claims one and twelve allege error in regards to Juror No. 10, who was identified during jury deliberations as being in disagreement with the other eleven jurors on the robbery count and sought to be excused because one of the other jurors believed she was acting out of bias. The trial court, after questioning the jury foreman and Juror No. 10 regarding the alleged bias, allowed the deliberations to resume and the jury eventually reached a unanimous verdict on the robbery count. Petitioner subsequently requested the release of the jurors' names and addresses in order to investigate the possibility of coercion of Juror No. 10. In addition, sometime after the verdict was reached, Juror No. 10 sent a letter to the trial court in which she claimed she had been treated cruelly during jury deliberations, was never allowed to present ...