The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation filed by Magistrate Judge Louisa S. Porter. (Doc. # 20).
On July 2, 2008, Petitioner Michael Anthony Harris, a state prisoner proceeding pro se, initiated this action by filing his Petition for Writ of Habeas Corpus in the United States District Court for the Central District of California. (Doc. # 1). Petitioner challenges his conviction for robbery on the grounds that (1) there was insufficient evidence to support his conviction; and (2) the trial court improperly denied his motion for substitute counsel, resulting in ineffective assistance of counsel. Id. at 5. On July 9, 2008, the action was transferred to the United States District Court for the Southern District of California. (Doc. # 3). On September 4, 2008, Respondent Larry Smalls filed a Motion to Dismiss Petition for Writ of Habeas Corpus. (Doc. # 9). Respondent contended the petition was untimely. (Doc. # 9-1 at 3). On April 14, 2009, the Court denied the Motion to Dismiss, holding that Petitioner was entitled to equitable tolling. (Doc. # 16).
On June 9, 2009, Respondent filed an Answer to the Petition. (Doc. # 18). The Memorandum of Points and Authorities in support of Respondent's Answer contends the state courts reasonably denied Petitioner's claim that the evidence was insufficient to support his conviction and Petitioner's claim that the trial court erred in failing to provide substitute counsel. (Doc. # 18-1 at 5, 7-8).
On June 30, 2009, Petitioner filed a traverse. (Doc. # 19).
On February 19, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") which recommends that the Petition be denied. (Doc. # 20). The R&R concludes that "the state appellate court reasonably concluded that there was ample evidence to support a rational trier of fact's conclusion that Petitioner committed the robbery." Id. at 7. The R&R concludes that the state appellate court's decision properly relied on the evidence offered at trial that a man with the same weight, height, build, and skin tone touched an item at the crime scene subsequently recovered with Petitioner's print on it. Id. at 6-7. The R&R addresses the two issues raised by Petitioner's second claim separately. Id. at 7 n. 2. First, the R&R concludes that the state appellate court correctly held that the trial court did not commit constitutional error in denying Petitioner's Marsden motion for substitute counsel. Id. at 8-9; see also People v. Marsden, 2 Cal. 3d 118 (1970). Applying Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc), the R&R concludes the trial court properly addressed the Marsden motion for substitute counsel by assigning a different judge to preside over a closed, ex parte hearing where the court gave Petitioner an opportunity to explain his concerns with his current counsel and heard testimony from Petitioner's counsel about his view on their disagreements. Id. at 9. The R&R concludes this record shows Petitioner's differences with his counsel were "over a matter of trial tactics, which does not mandate granting a motion for substitution of counsel." Id. at 10. Second, the R&R concludes that Petitioner has failed to demonstrate that his trial attorney's performance was deficient. Id. at 11-12. Although Petitioner contends "his attorney presented no meaningful defense by rejecting pursuit of an alibi defense" after investigating Petitioner's alibi and concluding it was weak, the R&R concludes that Petitioner's trial counsel presented a defense based on the weakness of the prosecution's case. Id.
The R&R informed the parties that any party may file an objection no later than March 22, 2010 and that any reply shall be filed no later than fourteen days after being served with the objections. Id. at 12-13. On March 24, 2010, Petitioner filed a Motion for Enlargement of Time to Respond to the Report and Recommendations. (Doc. # 22). The Court granted the motion on March 29, 2010. On April 13, 2010, Petitioner filed his objection to the R&R. (Doc. # 24). Respondent did not file any objections or response to Petitioner's objection.
In his objection, Petitioner objects to the Magistrate Judge's conclusion that the state court's decision on the sufficiency of the evidence was neither an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 314-318 (1979), nor based on an unreasonable determination of the facts. (Doc. # 24 at 2). Petitioner contends the Magistrate Judge erred because the evidence does not permit a rational fact-finder to conclude that he is guilty beyond a reasonable doubt. Id. Petitioner contends the circumstantial evidence against him "at least equally supports guilt and innocence." Id. Petitioner contends there was no evidence that a tile recovered from a stolen vehicle with Petitioner's fingerprint on it was the same tile which witnesses saw one of the robbers touch. Id. at 3-4. Petitioner contends his print is only evidence that he was a "curious passerby or an accessory after the fact" who encountered the stolen vehicle, not evidence that he was involved in the robbery. Id. at 4.
In the event that the Court adopts the conclusion of the R&R and denies the Petition, Petitioner requests a Certificate of Appealability allowing him to appeal his case pursuant to Miller-El v. Cockrell, 537 U.S. 322 (2003). (Doc. # 24 at 5). Petitioner contends he has made a sufficient showing that he was denied a constitutional right to merit a Certificate of Appealability and contends that reasonable jurists could debate whether he is entitled to relief. Id. at 6-8.
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C § 636(b). The district judge "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). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. Wang v. Masaitis, 416 F.3d 992, 100 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
Petitioner objected to the Magistrate Judge's conclusion that the state appellate court's determination that sufficient evidence supports his conviction is not contrary to or an unreasonable application of clearly established federal law. ...