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Gary Leon Peavy v. Matthew Cate

August 1, 2012

GARY LEON PEAVY,
PETITIONER,
v.
MATTHEW CATE, SECRETARY, RESPONDENT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2)OVERRULING OBJECTIONS; AND (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF Nos. 27, 29)

Presently before the Court is Petitioner Gary Leon Peavy's ("Petitioner") petition for writ of habeas corpus. (Pet., ECF No. 1.) Also before the Court is Magistrate Judge Louisa S. Porter's report and recommendation ("R&R") advising the Court to deny the Petition. (R&R, ECF No. 27) and, Petitioner's objections to the R&R. (Objections, ECF No. 29.) Having considered the parties' arguments and the law, the Court ADOPTS the R&R and DENIES Petitioner's writ of habeas corpus. To the extent that Plaintiff's objections contain attempts to request document production, discovery, and an evidentiary hearing, those requests are DENIED.

BACKGROUND

Magistrate Judge Porter's R&R contains a thorough and accurate recitation of the factual and procedural history underlying the instant motion. (R&R 1-4.) This Order incorporates by reference the background as set forth in the R&R, and briefly summarizes the most relevant facts here.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 19, 2009. (Pet. 1.) Petitioner raises nine grounds for relief stemming from his 2006 convictions of possessing heroin, possessing heroin for sale, possessing marijuana, possessing cocaine, possessing cocaine base for sale, and of being a felon in possession of a firearm, violations of CAL. HEALTH & SAFETY CODE §§ 11350(a), 11351, 11351.5, 1357(b) and of CAL. PENAL CODE § 12021(a)(1). (R&R 1-2.) Petitioner was sentenced to five years, eight months in state prison. (R&R 3.) Petitioner appealed, alleging there was (1) insufficient evidence of dominion and control; (2) a constitutionally deficient jury instruction; and

(3) that his sentencing was incorrect. (Id.) The Court of Appeals affirmed the judgment. (Id.) Petitioner then filed a habeas corpus petition in the California Supreme Court for the same three claims, which was summarily denied. Petitioner later filed a habeas petition in the Court of Appeals asserting ineffective assistance of counsel ("IAC"), and the Court of Appeals denied the petition. (Id.) Petitioner then filed two habeas petitions in the California Supreme Court for IAC; both were denied. (R&R 3-4.) Lastly, Petitioner has filed this federal action of habeas corpus alleging nine bases to overturn his conviction:

1. Insufficient evidence to sustain the convictions for possession of the narcotics and the handgun found in "Bedroom 1*fn1 ;"

2. Jury instruction as to reasonable doubt was constitutionally deficient;

3. The trial court improperly "imposed consecutive sentences without a factual finding by the jury;"

4. IAC at his preliminary hearing; 5. IAC at trial for failure to investigate and present alibi witnesses, file motions, attack the veracity of the warrant affidavit and visit the crime scene;

6. Failure by prosecution to disclose material exculpatory evidence;

7. Violation of Due Process because of prosecutorial misconduct for allowing false testimony "to stand uncorrected;"

8. IAC of appellate counsel for failure to "raise meritorious Fourth Amendment suppression issues" and "review Frank Puglia's conflict of interest in this matter;" and

9. Requesting consideration of "newly discovered" evidence of video tape and photographs depicting the crime scene. (Pet.)

On December 14, 2009, Respondent filed a motion to dismiss the Petition, contending that Petitioner failed to exhaust three of his nine claims (ECF No. 7), which was denied by the Court (ECF No. 16). Respondent then filed an answer. (ECF No. 21.) Petitioner filed a traverse on December 30, 2010. (ECF No. 26.) On August 22, 2011, Magistrate Judge Porter issued an R&R advising the Court to deny Petitioner's motion. (R&R 24.) Plaintiff objected to the R&R on September 13, 2011. (Objections.)

LEGAL STANDARD

1. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's report and recommendation. The district 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." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).

2. Cognizable Claim for Federal Relief

Under federal law, a prisoner seeking relief on claims related to imprisonment may file a petition for habeas corpus pursuant to 28 U.S.C. § 2254. A federal court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal intervention in state court proceedings is only justified when there are errors of federal law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). Federal habeas courts are bound by a state's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62, 68 (1991).

The Antiterrorism and Effective Death Penalty Act ("AEDPA") controls the review of Petitioner's federal habeas petitions. Lindh v. Murphy, 521 U.S. 320, 322--23 (1997). AEDPA establishes a "highly deferential standard for evaluating state-court rulings," requiring "that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A federal court can grant habeas relief only when the result of a claim adjudicated on the merits by a state court "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's decision is "contrary to" clearly established federal law if it (1) applies a rule that contradicts governing Supreme Court authority, or

(2) "confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (internal quotation marks omitted) (citation omitted). An "unreasonable" application of precedent "must have been more than incorrect or erroneous"; it "must have been 'objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520--21 (2003). Further, even if a reviewing federal court determines a constitutional error has occurred, relief is only authorized if the petitioner can show that the "error had a substantial and injurious effect" on his conviction or sentence. Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000).

ANALYSIS

Petitioner's objections essentially repeat arguments already asserted before Magistrate Judge Porter and considered in the R&R. Nevertheless, the Court liberally construes and considers the pro se Petitioner's discernable objections as now presented. Petitioner's claims are considered on the merits with a brief summary of the R&R's conclusions, Petitioner's objections and the Court's reasoning.

1. Ineffective Assistance of Counsel (Grounds Four, Five and Eight)

Petitioner claims that he received ineffective assistance of counsel at his preliminary hearing, trial and appeals. Ground Four of Petitioner's claim alleges appointed attorney Frank Puglia ineffectively represented him at his preliminary hearing by failing to perform an investigation, to interview witnesses before trial, and to file any motions requested by Petitioner. (Pet. 6.) In his Traverse, Petitioner added the claim that Puglia was not a "conflict free attorney" because of a prior relationship with Ronnie Williamson, a witness for the prosecution in Petitioner's trial. Ground Five alleges the appointed trial attorney also failed to investigate, to present trial witnesses, to file motions and to attack "the vera[]city of the warrant affidavit." (Pet. 10.) Petitioner contends that, due to the ineffective assistance of counsel, evidence went uncontested at trial and favorable witnesses were not presented at trial. (Id.) Ground Eight alleges IAC because the appointed attorney failed to investigate, to pursue exculpatory evidence and to raise meritorious Fourth Amendment issues. (Pet. 13.)

A. Summary of the R&R's Conclusions

Magistrate Judge Porter concluded that "the state court's decision finding Petitioner failed to establish prejudice under Strickland, was neither contrary to, nor an unreasonable application of, clearly established federal law." (R&R 9-13.) Additionally, the "state court decision was not an unreasonable application of the facts." (Id.) For all three IAC claims, the R&R concluded that Petitioner failed to satisfy a prejudice attributable to a counselor's representation. (R&R 10-13.) In addition, the R&R determined that there was no actual conflict for Sixth Amendment purposes, because Peavy failed to "substantiate his conclusory allegations about a relationship between his attorney, Puglia, and Ronnie Williamson." (R&R 11.) Lastly, the R&R concluded that the constitutional error allegations (i.e., insufficient evidence to support the dominion and control element of the possession crimes and the alleged IAC) were "unmeritorious in connection with other of his Petition claims." (R&R 12.) Furthermore, the R&R determined that according to the ...


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