The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Weaver was convicted by a San Diego jury of six counts of committing lewd and lascivious acts on two different girls. He was sentenced to five consecutive terms of fifteen years to life. On March 25, 2010, Weaver filed a habeas petition challenging his conviction, which was referred to Magistrate Judge Porter for a report and recommendation. Judge Porter issued a thorough and well-reasoned R&R on May 12, 2011 recommending that Weaver's petition be denied in its entirety. This Order ADOPTS that recommendation.
This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules of Civil Procedure. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). The district judge "must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Because Weaver is a prisoner and is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Weaver's petition asserts ten grounds for habeas relief, each of which Judge Porter's R&R considers in substantial depth and finds inadequate. The Court will address them in the same sequence as the R&R.
A. Ineffective Assistance of Appellate Counsel
Two of Weaver's grounds for relief-Grounds 8 and 9-allege that his appellate counsel was ineffective. Ground 8 alleges that appellate counsel was ineffective for abandoning two Fourth Amendment issues on direct appeal. Ground 9 alleges that appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel claims.
At trial, child pornography found on Weaver's computer was admitted into evidence over his objection that the search warrant that led to the discovery of the evidence was defective. According to Weaver, his argument was composed of five separate claims, each of which was presented at trial (and overruled), and each of which was also briefed on direct appeal before the Court of Appeal. (Pet. at 87.) The Court of Appeal's actual decision, however, only referenced three of those claims, leading Weaver to believe two of the claims-(1) that the warrant was overbroad, and (2) that it was facially defective-were overlooked by the Court of Appeal, and that he never received a hearing on them. (Pet. at 87.) Weaver urged his appellate counsel, Greg Kane, to file a petition for rehearing asking the Court of Appeal to specifically address the claims that it ostensibly overlooked, and Kane instead filed a petition for review in the California Supreme Court. Weaver argues this amounted to the ineffective assistance of appellate counsel, because the effect was to deny him a full and fair hearing on his overbreadth and facial defectiveness challenges to the warrant. (See Pet. 87--88.)
The Court notes, preliminarily, that the record does not entirely support Weaver's account of how his challenges to the warrant were presented at trial and on appeal. It is true that at trial, on April 27, 2005, Weaver's counsel offered three arguments in support of quashing the search warrant:
Mr. Stathis: The first prong has to deal with the fact that the warrant is sought based on this entirely hearsay statement by an uncorroborated, anonymous informant, which I've ...