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Dennis James Victorian v. Brenda Cash

September 8, 2011

DENNIS JAMES VICTORIAN, PETITIONER,
v.
BRENDA CASH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: James V. Selna United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On August 23, 2007, petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254, raising four claims for habeas corpus relief. (Petition at 5-6a). On December 12, 2007, respondent filed an Answer to the Petition ("Return"), addressing petitioner's four habeas claims. (Return at 14-47). On February 11, 2008, petitioner filed a Reply addressing his four claims for habeas corpus relief. (Reply at 1-9).

On February 28, 2011, the United States Magistrate Judge issued a Report and Recommendation recommending denying the Petition's four claims with prejudice. On April 14, 2011, petitioner filed Objections to the Report and Recommendation ("Objections").

In his Objections, petitioner argues that in addition to the four grounds addressed in the Report and Recommendation, the documents attached to his Petition raised a fifth ground for habeas corpus relief: "The trial court's amplification on the concept of reasonable doubt during jury selection was reversible error" because the trial court instructed the jury to use common sense in making its decisions. (See Objections at 34-37; see also Petition, Exh. A at 35-42).

Although it is procedurally improper to raise a new claim in Objections to a Report and Recommendation, see Greenhow v. Sec'y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc) (per curiam), cert. denied, 507 U.S. 978 (1993), the Court will nevertheless address the claim petitioner now refers to as Ground Five.*fn1

DISCUSSION

A. Relevant Background.

During jury selection, the trial court told the prospective jurors:

Each person will have something vital to contribute to these discussions that make up the deliberation process. Ultimately it isn't a majority vote. Each member will vote the way he or she believes is proper. You are asked not to reach your final conclusion until you have had a chance not only to hear everything out here in the courtroom, but then to hear what your fellow jurors think and then you make up your own mind based on evidence and law.

It is not based on emotion. You might decide that [petitioner] is the most charming gentleman you have ever met. That has nothing to do with it. He is not here to be judged in terms of goodness or badness, but only whether or not there is evidence to establish beyond a reasonable doubt that he committed one or more of these crimes. You may decide that a witness is very likeable or very unlikeable. That may not have anything to do with credibility.

You are going to judge whether or not the testimony is reliable. Whether it makes sense. Whether it is reasonable. You are going to do probably what you do regularly in your normal lives, which is to take in information, assess it using common sense and then make decisions. There is nothing magical about your jobs here. (Supplemental Reporter's Transcript ("SRT") at 312-13) (emphasis added).

B. The Court of Appeal's Opinion.

The California Court of Appeal summarily rejected ...


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