The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner David Conners Rust ("Petitioner") is a California state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Honorable Cathy Ann Bencivengo, United States Magistrate Judge, has issued a report and recommendation ("the Report") recommending that this Court deny the petition in its entirety. After careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court OVERRULES Petitioner's objections, ADOPTS the Report, and DENIES the petition for writ of habeas corpus.
In a twelve-count information filed in the San Diego County Superior Court on June 17, 2005, Petitioner was charged with two counts of lewd and lascivious conduct with a child under the age of fourteen (Cal. Pen. Code § 288(a)) (Counts 1 and 2), and ten counts of misdemeanor possession of child pornography (Cal. Pen. Code § 311.11(a)) (Counts 3 through 12). (Lodgment 1 at 1-4.) It was also alleged that Petitioner had previously been convicted of discharging a firearm at a dwelling or occupied vehicle (Cal. Pen. Code §§ 246 and 12022.5), which constituted a serious felony prior and a strike prior (Cal. Pen. Code §§ 667(a)(1) and (b)-(i), 1170.12). (Lodgment 1 at 5.)
On November 8, 2005, Petitioner pleaded guilty to the child pornography charges (Counts 3 through 12) and admitted the prior conviction allegations. (Lodgment 1 at 80-82, 276-278; Lodgment 2 at 41-44, 45-49.)
On November 10, 2005, a jury found Petitioner guilty of both counts of lewd and lascivious conduct with a child under the age of fourteen. (Lodgment 1 at 155-56; Lodgment 2, vol. 4 at 363-365.)
On February 22, 2006, the trial court sentenced Petitioner to state prison for a total determinate term of twenty-five years, consisting of a term of sixteen years on Count 1, plus a consecutive term of four years on Count 2, plus a consecutive term of five years for the serious felony prior conviction. (Lodgment 1, Vol. 2 at 258; Lodgment 2, vol. 5 at 401-404.)
On January 11, 2007, Petitioner filed a direct appeal, raising all of the issues raised in this habeas petition. (Lodgments 3 and 4.) On January 4, 2008, the California Court of Appeals, in a reasoned opinion, rejected his appeal. (Lodgment 7 -- People v. Rust, No. D048169, slip op. (Jan. 4, 2008).) Petitioner filed a petition for review with the California Supreme Court. (Dkt. No. 1 at 2.) On March 20, 2008, the California Supreme Court summarily denied Petitioner's petition for review. (Lodgment 8.)
On December 24, 2008, Petitioner filed the instant petition, asserting identical claims to those asserted in his state court appeals. (Dkt. No. 1.) On April 10, 2009, Respondent filed an answer to the petition and, on January 6, 2010, Petitioner filed his traverse. (Dkt. Nos. 8 & 11.) On February 1, 2010, the magistrate judge issued the Report. (Dkt. No. 12.) Petitioner filed objections to the Report on March 5, 2010. (Dkt. No. 13.) Respondent did not reply.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the 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]." Id. The party objecting to the magistrate judge's findings and recommendation bears the responsibility of specifically setting forth which of the magistrate judge's findings the party contests. See Fed. R. Civ. P. 72(b). It is well settled, under Rule 72(b), that a district court may adopt ...