The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION AND DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner Rafael Jasso ("Petitioner"), a prisoner appearing with counsel, filed a writ of habeas corpus under 28 U.S.C. §2254, challenging his conviction on various grounds. Respondent filed an answer and Petitioner filed a traverse. Pursuant to 28 U.S.C. §636(b)(1), the Honorable William Gallo, United States Magistrate Judge, submitted a report and recommendation ("Report"), recommending that the instant petition be denied in its entirety. After careful consideration of the parties' submissions and the Report, this Court ADOPTS the Report in full and DENIES the petition.
A district court "shall 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 judge." 28 U.S.C. §636(b)(1)(C). When no objections are filed by the parties, the district court may adopt the finding of fact in the magistrate judge's report, but must still review findings of law de novo. Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).
Petitioner did not file any objections to the Report. Accordingly, this Court adopts the factual findings issued by Judge Gallo. Petitioner claims that (1) the admission of his prior bad acts violated his right to due process and a fair trial (claim one); (2) there was insufficient evidence to satisfy the elements of attempted criminal threats (claim two); (3) his sentence of 35 years to life imprisonment constitutes cruel and unusual punishment in violation of the Eighth Amendment (claim three); and (4) he received ineffective counsel in violation of the Sixth Amendment (claim four). The magistrate judge found the aforementioned claims meritless and recommended the instant petition be denied in its entirety. This Court will review each claim in turn.
A. Admission of Prior Bad Acts
In claim one, Petitioner alleges that his right to due process and a fair trial were violated when the trial court admitted evidence of a prior bad act. Doc. 37 at 8. Petitioner claims the admission of Santiago's trial testimony stating he heard Petitioner had stabbed someone before and Santiago's 911 call in which he states that Petitioner "ha(d) a reputation of having injured people with a knife," [Id. (citing Lodgment No. 1 at 23, 25-31)], unduly prejudiced the jury and rendered his trial fundamentally unfair. Doc. 36 at 11. The magistrate judge determined the trial court properly ruled that "the evidence was relevant to prove the criminal threat element and victim's fear element of the charged crime, Petitioner's intent that his statements be taken as threats, and that the evidence was not more prejudicial than probative." Doc. 37 at 9 (citing Respondent's Lodgment No. 2 at 18-25). This Court agrees that admission of the evidence was not "arbitrary or so prejudicial that it rendered the trial fundamentally unfair." Id. at 10 (citing Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995)). Therefore, this Court adopts in full the magistrate judge's findings and conclusions presented in support of the magistrate judge's recommended denial of claim one.
B. Sufficiency of Evidence
In claim two, Petitioner alleges his conviction violated his right to due process because there was insufficient evidence to satisfy all of the elements of the charged crime, attempted criminal threats. Specifically, Petitioner claims his statements to Santiago lacked the requisite immediacy and specificity "to convey a gravity of purpose and an immediate prospect of execution." Id. at 12. The magistrate judge determined that the record was "replete with evidence that Petitioner aggressively, menacingly, and angrily approached Santiago over at least a 20 minute period" and "unconditionally threatened to break Santiago's taxi cab's windows and put Santiago in the trunk of his own cab." Id. at 16 (citing Respondent's Lodgment No. 2 at 48, 51, 73-75, 93-95, 102, 104). This Court's review of the record finds that the magistrate judge accurately concluded the requisite elements of ...