The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) OVERRULING PETITIONER'S OBJECTION; (2) JUDGE PAPAS' REPORT AND RECOMMENDATION; and (3) DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS ADOPTING MAGISTRATE (Doc. No. 10.)
On September 15, 2008, Marc Allan Farnsworth ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Fernando Gonzales ("Repondent") filed an Answer, and Petitioner subsequently filed a Traverse. (Doc. Nos. 8, 9.) On May 18, 2009, Magistrate Judge Leo S. Papas*fn1 issued a Report and Recommendation ("R&R") recommending this Court deny Petitioner's Petition for Writ of Habeas Corpus. (Doc. No. 10.) Petitioner filed his objection to the R&R on July 2, 2009. (Doc. No. 13.) For the following reasons, the Court HEREBY: (1) OVERRULES Petitioner's objection; (2) ADOPTS Magistrate Judge Papas' R&R; and (3) DENIES Petitioner's Petition for Writ of Habeas Corpus.
The procedural and factual history at issue in this matter are not in dispute and were not objected to. A brief summary is as follows:
On December 9, 2004, Petitioner was indicted by a grand jury for conspiracy to smuggle a controlled substance into state prison, where he was currently incarcerated. Petitioner had previously been convicted and sentenced to prison for three independent felonies: his first for possession of a controlled substance, his second for escape from prison, and his third for second degree robbery and attempted murder, which were committed by Petitioner while at large. Accordingly, the indictment for the conspiracy to smuggle a controlled substance into prison while incarcerated on the attempted murder and robbery conviction, alleged as an enhancement three strike priors.
On February 28, 2005, Petitioner pled guilty to the conspiracy charge in exchange for the dismissal of the strike allegations, which could have resulted in a potential life sentence. Under the terms of the agreement, Petitioner faced a maximum term of four years imprisonment, and, on May 25, 2006, the trial court sentenced Petitioner to four years imprisonment to be served consecutively to the term Petitioner was currently serving for attempted murder and robbery.
On October 26, 2007, the California Court of Appeal affirmed Petitioner's conviction and sentence. Petitioner subsequently filed a Petition for Review in California Supreme Court, which was denied. The instant Petition for Writ of Habeas Corpus was filed on September 9, 2008.
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 finding 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). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
In his R&R, Magistrate Judge Papas construed Petitioner's Petition to set forth three grounds for relief, rejecting all three. Petitioner objects only to one finding: "the interpretation that petitioner is appealing the validity of his plea when it is fully petitioner's intention to bring fourth the validity of his sentence." (Obj. at 1.) To be sure, Magistrate Judge Papas did construe Petitioner's Petition in part as challenging the validity of the plea agreement because Petitioner argued that he would not have pled guilty had he known he would be sentenced to four years. (See R&R at 9.) Magistrate Judge Papas, however, also adequately and correctly analyzed the claim that the sentence, and not the plea, was invalid. (See id. at 10-13.) Thus, the Court will review this finding de novo. 28 U.S.C. § 636(b)(1)(c). As to the remaining portions of Magistrate Judge Papas' R&R which were not objected to, the Court has reviewed the record and finds " no clear error." Fed. R. Civ. P. 72, Advisory Committee Notes (1983). Thus, the Court ADOPTS the unobjected to portions of the R&R.
Plaintiff's sole objection to the R&R is that the state court's four-year sentence was not authorized by lawunder Cal. Penal Code § 1170.1(c) and therefore should be invalidated. Petitioner claims that the question before this Court is:
[D]id the lower court (trial court) misinterpret the guidelines of Cal. Penal Code § 1170.1 (a), (c), and if so does it make petitioner's sentence of 4 years on a consecutive [in-custody] offense instead of one third as ...