The opinion of the court was delivered by: Cathy Ann Bencivengo United States District Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 44]; (2) REJECTING PETITIONER'S OBJECTIONS [Doc. No. 50]; (3) DENYING FOR WRIT OF HABEAS CORPUS [Doc. No. 15]; OF APPEALABILITY THE SECOND AMENDED PETITION and (4) DENYING CERTIFICATE
Joseph Hilton McDonald ("Petitioner"), is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] This matter was referred to United States Magistrate Judge Peter C. Lewis pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Lewis issued a Report and Recommendation ("Report") recommending the Court deny the petition. [Doc. No. 44.] Petitioner filed objections to the Report. [Doc. No. 50.]
Following de novo review of Petitioner's claims, the Court finds the Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition. For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects Petitioner's objections; (3) denies the Second Amended Petition for writ of habeas corpus; and (4) denies a certificate of appealability.
The Report contains an accurate recital of the facts as determined by the California Court of Appeal, and the Court fully adopts the Report's state of facts. As the magistrate judge correctly noted, the Court presumes state court findings of fact to be correct.
II. State Procedural Background
The Report contains a complete and accurate summary of the state court proceedings, and the Court fully adopts the Report's statement of state procedural background.
III. Federal Procedural Background
On January 12, 2009, Petitioner filed a Second Amended Petition challenging his San Diego County Superior Court convictions. [Doc. No. 15 and 16.] Respondent filed an Answer to the Second Amended Petition, and lodged portions of the state court record. [Doc. No. 37.] Petitioner filed a Traverse. [Doc. No. 40.]
On February 8, 2011, Magistrate Judge Peter C. Lewis issued a Report recommending that the Second Amended Petition be denied. [Doc. No. 44.] On March 23, 2011, Petitioner filed an Objection to the Report. [Doc. No. 50.] In his objection, Petitioner argues that the magistrate judge erred in finding that the state court did not make an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the evidence. Petitioner also requests an evidentiary hearing. Because Petitioner has objected to the Report in its entirety, the Court reviews the Report de 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).
The Report sets forth the correct standard of review for a petition for writ of habeas corpus. Under 28 U.S.C. § 2254(d):
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...