(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 15]; (2) OVERRULING PETITIONER'S
OBJECTIONS [DOC. 22]; AND (3) DENYING PETITION WITH PREJUDICE [DOC. 1]
M. JAMES LORENZ, District Judge.
On December 8, 2011, Petitioner Jamal Roberts, a state prisoner, filed this Petition for Writ of Habeas Corpus seeking 28 U.S.C. § 2254 habeas relief from his October 11, 2007 conviction and sentence for conspiracy to commit murder for the benefit of a criminal street gang. On February 5, 2013, United States Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("Report") recommending that this Court deny the Petition. Petitioner filed objections to the Report.
For the following reasons, the Court ADOPTS the Report in its entirety (Doc. 15), OVERRULES Petitioner's objections (Doc. 22), and DENIES the petition with prejudice (Doc. 1).
I. LEGAL STANDARD
A district court's duties concerning a magistrate judge's report and recommendation and a party's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise") (emphasis in original).
In contrast, the duties of a district court in connection with a magistrate judge's report and recommendation are quite different when an objection has been filed. These duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). Specifically, the district court "must 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." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz , 447 U.S. 667, 676 (1980); United States v. Remsing , 874 F.2d 614, 617 (9th Cir. 1989).
On October 11, 2007, Petitioner was convicted of conspiracy to commit murder for the benefit of a criminal street gang. (Doc. 1.) Petitioner presents nine grounds for habeas relief: (1) the state failed to establish that wiretaps used were necessary; (2) the state failed to properly minimize the intercepted calls; (3) the state violated the court's wiretap order and failed to timely file 6-day reports with the court; (4) the admission of expert gang testimony violated Petitioner's due-process rights; (5) Petitioner received ineffective assistance of counsel; (6) the trial court erred because it denied severence and admitted certain phone calls after co-defendant Milton Pettis testified in violation of Petitioner's federal due-process rights; (7) the admission of photographic evidence violated Petitioner's due process rights; (8) the trial court should have suppressed evidence obtained as a result of an illegal vehicle stop; (9) insufficient evidence supports the conviction. Respondent filed an answer opposing habeas relief contending that Petitioner's habeas claims are not cognizable for federal collateral review and the claims fail on the merits. (Doc. 9.) Thereafter, Petitioner filed a traverse. (Doc. 13.)
Judge McCurine issued the Report and recommended that the petition be denied. (Doc. 15.) Petitioner objects to the recommendations in the Report. (Doc. 22.)
A. Petitioner Does Not State a Cognizable Federal Claim as to the Admissibility of Wiretap Evidence.
A claim for habeas review under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, is not cognizable if "the claim does not involve an error of the character or magnitude' to justify habeas relief." Lord v. Lambert , 347 F.3d 1091, 1094 (9th Cir. 2003) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). A Title III claim involves an error of the character or magnitude to justify habeas relief only if there is "a fundamental defect which inherently results in a complete miscarriage of justice, ' or an omission inconsistent with the rudimentary demands of fair procedure'" such that the error "present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" See id. The existence of other evidence to establish the reliability of disputed evidentiary material is inconsistent with a fundamental defect of the character which inherently results in a complete miscarriage of justice. See id. at 1095. A full and fair opportunity to argue for suppression at both the trial and appellate levels is inconsistent with an omission contrary to the rudimentary demands of fair procedure. See id.
Petitioner objects to Judge McCurine's finding that his claims are not cognizable on federal review because the admission of wiretap evidence did not result in a complete miscarriage of justice or denial of fair procedure. (Pet'r's Objections 2:14-15.) Petitioner contends that "there was no other evidence introduced at trial that made the wiretap evidence reliable or that showed that Petitioner was guilty...."
Judge McCurine's reasoning in the Report belies this contention. (Report 18:10-13 ("[T]he subsequent actions of co-conspirators-in addition to the photographic gang evidence and Roberts' post-arrest admission to Pettis that he was about to strike when he was detained-supported the calls' reliability and helped to prove the prosecution's theory of the case.").) Petitioner does not address the corroborating evidence cited in the Report, nor does he otherwise attempt to distinguish Lord . Instead, he elects to assert a lack of evidence in general terms. (Pet'r's Objections 3:12-15 ("[T]here was no evidence that the defendants were doing anything other than organizing a party and going about their way selling drugs and doing other business.").) Petitioner further attempts to show a lack of corroborating evidence by arguing that "the slang used in the phone calls was open to interpretation, " that "when Mr. Pettis testified, he interpreted the phone calls in a completely different, more innocent way than the gang expert." ( Id. at 3:7-11.) These contentions do not address the issue at hand. Even if assumed true, they do not preclude the existence of evidence to establish the reliability of ...