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MARK LEEVERN PHILLIPS v. J. TIM OCHOA

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 27, 2010

MARK LEEVERN PHILLIPS, PETITIONER,
v.
J. TIM OCHOA, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Hon. George H. WU United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

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

The Court finds that Petitioner's first two objections parrot the arguments previously made in the Petition and the Traverse and to be unmeritorious. Petitioner's third objection appears to be that the Magistrate Judge erroneously ignored certain purportedly conflicting testimony in Petitioner's second trial for attempted murder. This objection similarly lacks merit, but briefly warrants amplification.

The Magistrate Judge provided a detailed procedural history of Petitioner's underlying criminal conviction and concluded that the trial transcripts from the second trial, where Petitioner was acquitted of the charge of attempted murder, were irrelevant because they did not relate to his Petition and conviction, and Petitioner did not assert otherwise. In his objections now, Petitioner contends those trial transcripts are, in fact, relevant because the testimony of certain prosecution witnesses in the second trial was "inconsistent" with the testimony of those same witnesses in the first trial. (Objs. at 4-5.) Petitioner contends, without elaboration, that the inconsistent testimony "will clearly show the miscarriage of justice, and, the court of appeal's unreasonable application of federal law including an unreasonable determination of the facts." (Id. at 5.)

Petitioner is mistaken. This Court has reviewed the testimony cited to be inconsistent, and finds no material inconsistency, and certainly none leading to a colorable constitutional violation here. (Compare Reporter's Transcript [Second Trial -- June 2006) at pp. 91-93, 112-117, 133-135, 212-213 with Reporter's Transcript [First Trial -- June/July 2005) at pp. 49-55, 80-84, 158-167.) In both trials, the crux of the testimony was that Petitioner -- in front of several witnesses -- openly attacked the victim with a knife, misled law enforcement about the crime, and secreted the weapon. In sum, the testimony in the second trial serves to corroborate the testimony in the first trial and buttresses Petitioner's rightful conviction.

Accordingly, IT IS ORDERED THAT:

1. Petitioner's objections, filed on June 16, 2010, are overruled.

2. The Report and Recommendation is approved and adopted.

3. Judgment shall be entered denying the Petition and dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on Petitioner and counsel for Respondent.

20101127

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