The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation filed by Magistrate Judge Ruben B. Brooks. (Doc. # 17).
On January 23, 2009, Petitioner Christopher Luevano, a state prisoner proceeding pro se, initiated this action by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). Petitioner challenges his November 22, 2006 convictions for aggravated mayhem, assault with a deadly weapon, and petty theft with a prior conviction. Petitioner alleges that he received constitutionally ineffective assistance of trial counsel, that the California Superior Court erred in denying his motion to reopen the case, and that he received ineffective assistance of appellate counsel. Id. at 5, 7. Petitioner contends that defense counsel's failure to conduct a comprehensive and timely investigation of Wal-Mart store policies governing security procedures and to move for a continuance in order to complete the process of obtaining supporting evidence constitutes ineffective assistance of counsel. Pet. at 6. Petitioner's counsel received Wal-Mart's policy pursuant to a subpoena after the defense had rested. Pet. at 7. Petitioner's counsel moved to reopen the case prior to closing arguments to present the evidence. Id. Petitioner contends that the trial court's decision to deny his request to reopen violated his right to confront witnesses and to present evidence in his defense. Id. Petitioner contends his appellate attorney's failure to raise the issue of trial counsel's ineffectiveness on direct appeal constitutes ineffective assistance of appellate counsel. Pet. at 8.
On June 5, 2006, Petitioner entered a San Diego area Wal-Mart store. (Doc. #17 at 4). Adrian Salas, a loss prevention officer, observed Petitioner place a 19-inch computer monitor in his shopping cart. Id. Salas observed Petitioner replace the bar code label on the box containing the monitor. Id. Salas watched Petitioner scan the items in his cart and learned from another store employee that the computer monitor, priced at $298.00, scanned as a computer mouse pad costing $2.97. Id. Salas approached Petitioner and attempted to detain him as Petitioner proceeded to exit the store. Id. at 5. Following a brief struggle in the store, Salas tackled Petitioner in the parking lot. Id. at 7. Petitioner produced a small X-Acto knife and stabbed Salas several times. Id. at 8.Salas was transported to the hospital and treated for lacerations to his face, nose, neck and lip. Id. During trial, Petitioner testified that his actions were a result of self-defense, because he believed he was about to be "jumped." Id. at 10. Petitioner also testified that he entered Wal-Mart with the intention of stealing merchandise by switching bar code labels and the X-Acto knife was to be used for that purpose, and not as a weapon. Id. at 9.
On June 1, 2009, Respondent filed an answer to the Petition. (Doc. # 10). Respondent contends that the state trial court properly denied Petitioner's request to reopen the case because the store policies proffered by defense counsel were not relevant to any disputed issue at trial and that the California courts reasonably and properly rejected Petitioner's claim that trial and appellate counsel provided ineffective assistance. Id. at 6, 9.
On July 6, 2009, Petitioner filed a traverse. (Doc. # 16).
On May 14, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") which recommends that the Petition be denied. (Doc. # 17). The R&R concludes that resolution of Petitioner's second claim for relief is dispositive of his other claims. The R&R concludes that "the state appellate court's determination that the trial court's denial of the defense motion to reopen the case . . . did not violate Petitioner's constitutional rights." Id. at 27. In applying a harmless-error analysis using the factors set out in Van Arsdall, the R&R further concludes that "any errors arising from [the trial court's] decision was clearly harmless." Id. The R&R concludes that Petitioner "is unable to demonstrate prejudice arising from defense counsel's performance," because the evidence of Wal-Mart's policies did not refute the prosecution's case. Id. at 30-1. In addressing Petitioner's third claim, the R&R concludes that "[t]he failure to raise meritless or untenable claims on appeal does not constitute ineffective assistance of appellate counsel." Id. at 33.
Petitioner filed objections on June 17, 2010. (Doc. # 19). Respondent did not file any objections or any responses to Petitioner's objections.
Petitioner contends that the Magistrate Judge incorrectly concluded "that resolution of Petitioner's second claim . . . is dispositive of his other claims." (Doc. # 19 at 1). Petitioner contends that the Wal-Mart policy document was crucial to impeach the testimony of Salas. Id. at 4. Petitioner contends that the state court improperly determined that the Wal-Mart document had minimal relevance. Id. at 7. Petitioner contends that he was entitled to use the Wal-Mart policy to show that Salas lied to the jury about his knowledge of the policy. Id. Petitioner contends that the record shows at least one juror's interest in learning about WalMart's store policies and procedures, and that the question of the existence of the policy and their relation to the case would have been "the pivotal point of this entire trial." Id. at 8. Because he was denied an opportunity to present the evidence, Petitioner asserts he has established prejudice. Id. Petitioner contends an evidentiary hearing is appropriate to determine the validity of each of his claims. Id. at 5, 7, 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 Court reviews all portions of the R&R de novo.
Petitioner asserts that the Magistrate Judge incorrectly resolved Petitioner's second claim, his right to confront and cross-examine, in favor of the Respondent. Petitioner contends that resolution of his second claim is not dispositive of his first and third claims of ineffective assistance of counsel. (Doc. # 19 at 1). Petitioner asserts the policy document obtained from Wal-Mart was relevant to challenge the credibility of Respondent's primary witness. (Doc. #19 at 3). The Magistrate Judge concluded that the proffered materials were only minimally relevant to the disputed issues at trial and the admissibility of the evidence was vastly outweighed by prejudice. (Doc. #17 at 12). The Magistrate Judge correctly concluded that the trial court's determination that the evidence was inadmissible because "it is unlikely that Salas's credibility would have been significantly diminished with further cross-examination" was neither contrary to, nor involved an ...