The opinion of the court was delivered by: Honorable Dale S. Fischer United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), and petitioner's objections to the Report and Recommendation ("Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and adopts the findings, conclusions, and recommendations of the United States Magistrate Judge with the updates noted below and overrules the Objections.
Based upon information that became available after the issuance of the Report and Recommendation, citations/quotations in the Report and Recommendation are updated as follows:
The citation to Hayes v. Ayers on pages 37-38 (not including the explanatory parenthetical which follows the citation and remains unchanged) is updated to read: Hayes v. Ayers, 632 F.3d 500, 521 (9th Cir. 2011).
The citation to United States v. Kent on page 45 (not including the explanatory parenthetical which follows the citation and remains unchanged) is updated to read: United States v. Kent, 633 F.3d 920, 926 (9th Cir. 2011).
The citation to Kent on page 46 (not including the explanatory parenthetical which follows the citation and remains unchanged) is updated to read: Kent, 633 F.3d at 927.
Footnote 32 on page 67 is updated to read: In Wilson v. Knowles, __ F.3d __, 2011 WL 1204143 (9th Cir. Apr. 1, 2011), the Ninth Circuit held a sentencing judge exceeded the bounds of Apprendi's prior conviction exception when the judge resolved disputed issues of material fact pertaining to one of Wilson's prior convictions, including "the extent of [a surviving] victim's injuries and how [an] accident occurred[,]" that increased Wilson's sentence to 25 years to life under California's Three Strikes law. Id. at *2. The Ninth Circuit found the trial judge violated Apprendi because the disputed facts in question were "not historical, judicially noticeable facts" but instead were determined by the judge based on speculation as to how a jury in the prior case might have evaluated the evidence if the evidence had been offered and if such jury had been impaneled to evaluate it. Id. Wilson is inapposite here, however, since, among other reasons, petitioner's prior convictions were submitted to the jury. (CT 218-21; RT 348-80).
The citation to Norris v. Morgan on page 68 is updated to read: Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010), cert. denied, 131 S. Ct. 1557 (2011).
The citation to Hayes v. Ayers on page 91 (not including the explanatory parenthetical which follows the citation and remains unchanged) is updated to read: Hayes v. Ayers, 632 F.3d at 524.
IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on petitioner and counsel for respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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