The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DENYING CERTIFICATE OF APPEALABILITY (ECF Nos. 1, 44)
Presently before the Court is Magistrate Judge Bernard G. Skomal's report and recommendation ("R&R") advising the Court to deny Petitioner Peter Jacobson Johnson's ("Petitioner") petition for writ of habeas corpus ("Petition"). (R&R, ECF No. 44) Also before the Court are Petitioner's objections to the R&R. (Obj., ECF No. 58) After consideration, the Court OVERRULES Petitioner's objections, ADOPTS the R&R, and DENIES the Petition.
Magistrate Judge Skomal's R&R contains a thorough and accurate recitation of the factual and procedural background underlying the instant Petition. (R&R 1--4, ECF No. 44) This Order incorporates by reference the factual and procedural background as set forth in the R&R.
On September 21, 2009, Petitioner filed the instant Petition asserting four grounds for relief, as summarized in the R&R:
First, Johnson claims that his trial counsel rendered ineffective assistance by: (a) disrupting the Marsden hearing; (b) being unprepared for trial; (c) failing to challenge certain witness testimony; (d) failing to make certain arguments; and (e) failing to object to the prosecutor leading witnesses. Second, Johnson claims that the prosecutor committed misconduct by: (a) knowingly soliciting perjured testimony. Third, he contends that the prosecutor solicited false evidence and misstated the facts throughout trial. Last, Johnson contends that the trial court violated his constitutional rights by excluding exculpatory evidence. (Id. at 4 (citing Pet. 9--24,*fn1 ECF No. 1)) On December 30, 2009, Respondent answered the Petition, arguing that Petitioner had not effectively exhausted his claims and that his claims are not colorable. (Answer 3--15, ECF No. 13) Petitioner filed a traverse to Respondent's answer on December 6, 2010.*fn2 (Traverse, ECF No. 33) On March 22, 2012, Magistrate Judge Skomal issued an R&R advising the Court to deny the Petition. (R&R, ECF No. 44) Petitioner objected to the R&R on July 9, 2012. (Obj., ECF No. 8)
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 R&R. 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 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 in 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") governs federal habeas petitions filed after April 24, 1996. 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).
The Court liberally construes the pro se Petitioner's objections and reviews de novo those portions of the R&R that are objected to, proceeding on a claim-by-claim basis.*fn3
1. Ineffective Assistance of Counsel Claims
Petitioner claims he received ineffective assistance of counsel by his trial counsel, in violation of the Sixth Amendment. The Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), provides the clearly established federal law governing ineffective assistance of counsel claims. See Williams v. Taylor, 529 U.S. 362, 391 (2000) ("Strickland . . . provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims."); Sims v. Brown, 425 F.3d 560, 584 (9th Cir. 2005). Under Strickland, a petitioner's claim for ineffective counsel must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688; and (2) "deficiencies in counsel's performance [were] prejudicial to the defense," id. at 692. A court does not need to address both prongs of the Strickland test if the petitioner makes an insufficient showing on one. Id. at 697.
A. Summary of the R&R's Conclusions
Magistrate Judge Skomal considered each of the asserted bases for ineffective assistance of counsel in turn. First, based on a review of the Reporter's Appeal Transcript, the R&R concluded that "[t]here is nothing in the record to indicate that the exchange between the trial judge and counsel took place in such a manner that the attorney sabotaged Johson's (sic) Marsden hearing," and that "counsel's behavior during the Marsden hearing was not deficient." (R&R 8, ECF No. 44) Second, as to counsel's alleged failure to prepare, the R&R determined that "there is nothing in the record suggesting that counsel lacked a strategic purpose for failing to challenge Detective Thwing's testimony, (id. at 9); that "counsel's decision not to further inquire into [Kitty] Dean's potentially inconsistent statements regarding Johnson's reason for disliking the victim falls within the wide range of reasonable professional assistance and tactical choice," (id. at 10); and that "there is nothing in the record suggesting that counsel lacked a strategic purpose for failing to challenge Detective Donaldson's testimony," (id. at 11). Third, the magistrate judge disposed of Petitioner's argument that his counsel was deficient failing to present certain arguments or evidence, reasoning that counsel's decisions were tactical ones and that Petitioner had not shown that there was a reasonable probability that the result of the proceeding would have been different absent these reasonable tactical choices. (Id. at 11--14) Fourth, the R&R did not find ineffective assistance of counsel based on counsel's alleged failure to object to leading questions because Petitioner "offers no evidence for his claim." (Id. at 14)
B. Objections to the R&R's ...