United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS
MARILYN L. HUFF, District Judge.
Petitioner Ramon Nava ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 7, 2013. (Doc. No. 1.) On August 5, 2013, Respondent filed a motion to dismiss. (Doc. Nos. 8 & 9.) Petitioner did not file an opposition to the Respondent's motion to dismiss. On October 23, 2013, the magistrate judge filed a report and recommendation that the Court grant Respondent's motion to dismiss. (Doc. No. 11.) On November 11, 2013, the Court granted Petitioner a thirty day extension to file an objection to the magistrate judge's report and recommendation. (Doc. No. 14.) On December 20, 2013, the Court granted Petitioner a second thirty day extension to file an objection to the magistrate judge's report and recommendation. (Doc. No. 16.) On January 21, 2014, Petitioner filed his objection to the magistrate judge's report and recommendation. (Doc. No. 17.) The Court adopts the report and recommendation of the magistrate judge and grants Respondent's motion to dismiss.
On July 24, 2006, a jury convicted Petitioner of eight counts of lewd acts upon a child under 14 years of age. (Doc. No. 10-2, Clerk's Transcript, at 2.) The jury found that in each of the eight counts Petitioner had substantial sexual conduct with the victim. (Id.) The San Diego Superior Court ("Superior Court") sentenced Petitioner to twelve years in prison. (Id.) On October 4, 2006, Petitioner appealed the conviction. (Doc. Nos. 10-4, Appellant's Opening Brief, 10-5 Appellant's Supplemental Opening Brief.) On April 23, 2008, the state appellate court affirmed the judgment. (Doc. No. 10-6, Opinion.) On June 5, 2008, Petitioner filed a petition for review with the California Supreme Court. (Doc. No. 10-7, Petitioner for Review.) On July 28, 2008, the California Supreme Court denied the petition for review. (Doc. No. 10-8, Order Denying Petition.) The conviction became final on October 16, 2008. (See id.; see also Wixom v. Washington , 264, F.3d 894, 897 (9th Cir. 2001))
On November 30, 2009, Petitioner filed his first petition for writ of habeas corpus in the Superior Court ("Superior Court"). (Doc. No. 10-9, Petition for Writ of Habeas Corpus.) The petition challenged the length of Petitioner's sentence under Cunningham v. California , 549 U.S. 270 (2007), and alleged ineffective assistance of trial counsel. (Id. at 3-4.) On January 15, 2010, the Superior Court denied the petition. (Doc. No 10-10, Order Denying Petition.) The Superior Court rejected Petitioner's Cunningham claim citing In re Harris , 55 Cal.4th 813, 825 (1993) and In re Waltreus , 62 Cal.2d 218, 225 (1965), and rejected Petitioner's ineffective assistance of counsel claim citing In re Martinez , 46 Cal.4th 945, 950 n.1, 956 (2009). (Doc. No. 10-11, Order Denying Petitioner, at 1-2.)
On September 14, 2010, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Doc. No. 10-11, Petition for Writ of Habeas Corpus.) On October 7, 2010, the state appellate court denied the petition citing In re Clark , 5 Cal.4th 750, 783 (1993) and In re Martinez , 46 Cal.4th 945, 950 n.1, 956 (2009). Doc. No. 10-12, Order Denying Petition, at 1.) On July 22, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Doc. No. 10-13, Petition for Writ of Habeas Corpus.) On February 29, 2012, the California Supreme Court denied the petition without comment. (Doc. No. 10-15, Order Denying Petition.)
On February 7, 2013, Petitioner filed his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
I. Legal Standard of Review
A district court "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). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report... to which objection is made." Id.
A federal court may review a petition for writ of habeas corpus by a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Id . § 2254(a); accord Williams v. Taylor , 529 U.S. 362, 375 n.7 (2000). Habeas corpus is an "extraordinary remedy" available only to those "persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Juan H. v. Allen , 408 F.3d 1262, 1270 (9th Cir. 2005) (quoting Brecht v. Abrahamson , 507 U.S. 619, 633-34 (1993)). Because Petitioner filed this petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the petition. See Lindh v. Murphy , 521 U.S. 320, 327 (1997); Chein v. Shumsky , 373 F.3d 978, 983 (9th Cir. 2004) (en banc). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter , 131 S.Ct. 770, 784 (2011). Indeed, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id . Federal habeas relief is available, but only if the result of a federal claim the state court adjudicated on the merits is "contrary to, " or "an unreasonable application" of United States Supreme Court precedent, or if the adjudication is "an unreasonable determination" based on the facts and evidence. 28 U.S.C. §§ 2254(d)(1) and 2254(d)(2).
A federal court may grant habeas relief under the "contrary to" clause of Section 2254(d)(1) if a state court either "applies a rule that contradicts the governing law set forth in [the United States Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Early v. Packer , 537 U.S. 3, 8 (2002); see also Williams , 529 U.S. at 405-06 (distinguishing the "contrary to" and the "unreasonable application" standards). "[R]eview under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011).
A federal court may grant habeas relief under the "unreasonable application" clause of § 2254(d)(1) if the state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams , 529 U.S. at 407. A federal court may also grant habeas relief "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id . The state court's "unreasonable application" of binding precedent must be objectively unreasonable to the extent that the state court decision is more than merely incorrect or erroneous. Wiggins v. Smith , 539 U.S. 510, 520-21 (2003) (citation omitted); see Lockyer v. Andrade , 538 U.S. 63, 75-76 (2003).
Additionally, even if a state court decision is contrary to United States Supreme Court precedent or rests on an unreasonable determination of facts in light of the evidence, the petitioner must show that such error caused substantial or injurious prejudice. Penry v. Johnson , 532 U.S. 782, 795 (2001) (quoting Brecht , 507 U.S. at 637-38); see Fry v. Pliler , 551 U.S. 112, 121-22 (2007); Bains v. Cambra , 204 F.3d 964, 977 (9th Cir. 2000). AEDPA creates a highly deferential standard toward state court rulings. Woodford v. Viscotti , 537 U.S. 19, 24 (2002); see Womack v. Del Papa , 497 F.3d 998, 1001 (9th Cir. 2007). Under 28 U.S.C. § 2244(d), a petitioner has one year from the date his conviction is final to file a petition for writ of habeas corpus in federal court pursuant to 28 ...