The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS
On November 14, 2008, Jarold Andre Walton ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his convictions for attempted murder, assault with a firearm, and possession of a firearm by a felon, alleging constitutionally ineffective trial and appellate counsel. (Id.) On February 9, 2009, Respondent filed an answer to the Petition. (Doc. No. 9.) On December 18, 2009, the magistrate judge issued a Report and Recommendation ("R&R") that the Court deny the Petition. (Doc. No. 22.) On January 25, 2010, Petitioner filed an objection to the R&R. (Doc. No. 24.)
The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits the matter on the papers. For the reasons set forth below, the Court ADOPTS the R&R and DENIES the Petition.
On May 31, 2005 a jury found Petitioner guilty of attempted murder, assault with a firearm, and possession of a firearm by a felon. (Lodgment No. 1 at 124-26.) Petitioner appealed his convictions to the California Court of Appeal presenting claims which are not raised here. (Lodgment Nos. 2-4.) On July 26, 2005, the Court of Appeal affirmed the convictions. (Lodgment No. 5.) Petitioner filed a petition for review in the California Supreme Court presenting the same claims as were presented to the appellate court. (Lodgment No. 6.) On October 11, 2006, the California Supreme Court denied the petition without prejudice. (Lodgment No. 7.)
On October 9, 2007, Petitioner filed a habeas petition in the San Diego County Superior Court alleging ineffective assistance of trial counsel. (Lodgment No. 8.) On November 13, 2007, the Superior Court denied the petition on the merits. (Lodgment No. 9.)
On January 3, 2008, Petitioner filed a habeas petition in the California Court of Appeal presenting ineffective assistance of trial and appellate counsel claims. (Lodgment No. 10.) On April 11, 2008, the appellate court denied the petition on the merits. (Lodgment No. 12.) On April 30, 2008, Petitioner filed a habeas petition to the California Supreme Court presenting the same ineffective assistance of trial and appellate counsel claims. (Lodgment No. 13.) On October 1, 2008 the California Supreme Court denied the petition. (Lodgment No. 14.)
I. Scope of Review and Applicable Legal Standard
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects to any portion of a magistrate judge's report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id.
The amended Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") 28 U.S.C. § 2254(d) provides the following standard of review applicable to state court decisions:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(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.
A federal court may grant habeas relief under the "contrary to" clause of § 2254(d)(1) if a state court either (1) "applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A federal court may grant habeas relief under the "unreasonable application" clause of § 2254(d)(1) if the state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. A federal court may also grant habeas relief "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. The state court's "unreasonable application" must be objectively unreasonable to the extent that the state court decision is more than merely incorrect or erroneous. See Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).
Habeas relief is also available under § 2254(d)(2) if Petitioner can demonstrate that the factual findings upon which the state court's adjudication of his claims rest are objectively unreasonable. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The state court's factual determinations are presumed to be correct and Petitioner has the burden of rebutting this presumption by clear ...