The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: OVERRULING PETITIONER'S OBJECTIONS TO REPORT AND RECOMMENDATION; [Doc. No. 14] ADOPTING REPORT AND RECOMMENDATION; [Doc. No. 10] DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; [Doc. No. 1] DENYING CERTIFICATE OF APPEALABILITY
Pending before the Court is the Report and Recommendation of Magistrate Judge Bernard G. Skomal, filed March 7, 2011, recommending the Court deny Petitioner Robert Eugene Taylor's ("Taylor") Petition for Writ of Habeas Corpus. [Doc. No. 10.] Although the deadline for filing objections to the Report and Recommendation had passed, Taylor filed documents in response to portions of the Magistrate Judge's Report. The Court construes Taylor's filing as a belated objection to the Report and Recommendation. Having considered the parties' filings, the Magistrate Judge's Report and Recommendation, the relevant controlling authority, and for the following reasons, the Court OVERRULES Taylor's objections, ADOPTS the Report and Recommendation in its entirety, and DISMISSES the Petition for Writ of Habeas Corpus.
A. Procedural Background in State Court
On June 3, 2005, a jury found Taylor guilty of nine counts of petty theft, and found true all the charged priors and enhancements. On March 23, 2006, the superior court sentenced Taylor to consecutive prison terms totaling 21 years, four months. (Lodg. 18, RT Vol. 6.) Taylor, represented by counsel, filed a direct appeal on grounds that (1) the trial court erred by refusing to give defense counsel's proposed mistake of fact jury instruction and/or for improperly instructing the jury ("instructional error"); and (2) the trial court's imposition of consecutive determinate sentences violated Taylor's right to a jury trial and due process ("sentencing error"). (Lodg. 2.) The appellate court affirmed Taylor's conviction and sentence in a reasoned decision. (Lodg. 7.) Taylor subsequently filed a petition for review with the California Supreme Court, which was summarily denied on April 9, 2008. (Lodgs. 8, 9.)
On July 14, 2008, Taylor, proceeding pro se, filed a state habeas petition in superior court asserting (1) he received ineffective assistance of trial counsel because counsel failed to request a continuance to obtain phone records to impeach certain witness testimony at trial; and (2) his fair trial rights were violated when the court denied his motion for a new trial and allowed allegedly perjured witness testimony to stand ("perjured testimony claim"). (Lodg. 10.) The superior court denied the petition. (Lodg. 11.) Taylor then presented two habeas petitions to the state appellate court, asserting the same two grounds for relief. (Lodg. 12-14.) The appellate court denied habeas relief on grounds of procedural default, and for failure to demonstrate prejudice. (Lodg. 15.) Taylor filed a subsequent state habeas petition in the state supreme court, asserting the same two grounds for relief. (Lodg. 16.) The California Supreme Court summarily denied the petition. (Lodg. 17.)
B. Procedural Background in Federal Court
On January 21, 2010, Taylor, proceeding pro se, filed the present Petition for a writ of habeas corpus under 28 U.S.C. section 2254. [Doc. No. 1.] The Petition presents four grounds for relief: (Ground One) ineffective assistance of trial counsel; (Ground Two) use of perjured testimony; (Ground Three) instructional error; and (Grounds Four) sentencing error. [Id.] These four grounds are the same claims he raised on direct appeal and in his state habeas petitions. Respondent concedes Taylor has exhausted these grounds. On March 23, 2010, Respondent filed an answer. [Doc. No. 4.]
On March 7, 2011, Magistrate Judge Skomal submitted a Report and Recommendation that the petition be denied in its entirety on grounds that Taylor is not in custody in violation of any federal right. [Doc. No. 10.] The Court ordered that objections to the Report and Recommendation be filed no later than March 21, 2011. The deadline to file objections passed, but on April 4, 2011, Taylor filed a "Motion for Extension of Time [and] Motion [for] Leave to Correct Writ of Habeas Corpus." [Doc. No. 11.] Although entitled as a motion for leave to amend his Petition, the Court construes Taylor's April 4, 2011 filing an objection to one portion of Magistrate Judge Skomal's Report and Recommendation. [See Doc. No. 11, p. 2 ("Petitioner now elects to address respondents [sic] response, and the Magistrates [sic] recommendations.").]
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Federal Rule of Civil Procedure 72 and 28 U.S.C. section 636(b)(1). When no objections are filed, a district court may assume the correctness of the magistrate judge's factual findings, and decide the motion on the applicable law. Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001) (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1974)). Where a party files written objections to the Report and Recommendation, "the district judge to whom the case is assigned 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."
28 U.S.C. § 636(b)(1)(C); see also Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004). A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744--45 (9th Cir.2002).
The Magistrate Judge recommends the Court find Ground One for ineffective assistance of trial counsel and Ground Two for perjured testimony claims are procedurally defaulted under California's independent and adequate untimeliness bar. And if the Court reaches the merits of Grounds One and Two, the Magistrate Judge recommends the Court find they are without merit. The Magistrate Judge also recommends the Court find Taylor's Ground Three for instructional error does not warrant relief because the state courts' rejection of this claim was objectively reasonable and did not violate Taylor's constitutional rights. The Magistrate Judge also recommends the Court find Taylor's request for habeas relief based ...