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Ford v. McDonald

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 2, 2010

LARRY FORD, PETITIONER,
v.
MIKE MCDONALD, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. VIRGINIA A. Phillips United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

Petitioner's objections generally regurgitate the arguments made in the Petition and Traverse, and lack merit for the reasons set forth in the Report and Recommendation. However, Petitioner does raise three issues that warrant brief discussion here.

First, Petitioner attaches several documents to his objections that relate to the removal of his trial judge, Robert G. Spitzer, from office. (See Objs. at 4-9, 25-60.) Although it is somewhat obtuse from his objections, Petitioner appears to assert that Judge Spitzer's removal was in some form or fashion materially related to his case. It was not. The Court has studied the attached documents, including the October 2, 2007 order removing Judge Spitzer from office, and finds that the documents bear no relationship to this habeas matter. According to the removal order, Judge Spitzer was expelled from office due to his conduct in lawsuits unrelated to Petitioner's case and, moreover, the expulsion concerned issues that are not germane to the constitutional claims advanced in the Petition. (Id. at 26-60.)

Second, Petitioner urges the Court to review a petition for writ of mandate ("Writ") that was evidently filed in the California Court of Appeal while Petitioner's trial was pending. The Writ challenged Judge Spitzer's refusal to recuse himself from Petitioner's trial. (Objs. at 2-4.) Petitioner requests that this Court now review the claims raised in that Writ. The Court declines the invitation to do so, once again. As this Court previously apprised Petitioner -- when denying a putative motion to amend his Petition -- the claims in the Writ remain unexhausted and unripe for consideration until "the federal claim has been fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275 (1971).

Third, Petitioner seeks an evidentiary hearing, including the ability to subpoena the victim, Maria Villalobos. Petitioner contends that Ms. Villalobos will exonerate him, but proffers no support for this proposition. The Court also notes that Ms. Villalobos already testified at Petitioner's trial and her testimony, largely inculpatory, was weighed in the Report and Recommendation. Plainly put, an evidentiary hearing is not required here.

Accordingly, IT IS ORDERED THAT: (1) the Report and Recommendation is approved and adopted; (2) Judgment be entered denying the Petition and dismissing this action with prejudice; and (3) the Clerk serve copies of this Order and the Judgment on the parties.

Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.

20101002

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