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Moses v. Beard

United States District Court, S.D. California

May 21, 2014

CHARLES E. MOSES, JR., Petitioner,
v.
DR. JEFFREY BEARD, Secretary, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 31] OVERRULING PETITIONER'S OBJECTIONS [Doc. No. 36] DENYING PETITION FOR WRIT OF HABEAS CORPUS; [Doc. No. 1] DENYING PETITIONER'S MOTION TO AMEND THE PETITION [Doc. No. 30] ECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

MICHAEL M. ANELLO, District Judge.

Petitioner Charles E. Moses, Jr., a state prisoner proceeding pro se, filed a petition for writ of habeas corpus ("petition") pursuant to Title 28 of the United States Code, section 2254, challenging his conviction following a bench trial for willful infliction of corporal injury upon a cohabitant. See Doc. No. 1. Petitioner raises three separate grounds for relief. Respondent answered the petition, arguing that the Court should deny all of Petitioner's claims and dismiss the petition with prejudice. See Doc. No. 25. Petitioner filed a traverse. See Doc. No. 27. Additionally, Plaintiff filed a document entitled "Request to Supplement Additional Grounds, " in which Plaintiff seeks to add a fourth claim for habeas relief. See Doc. No. 30.

The matter was referred to United States Magistrate Judge Jan M. Adler for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Adler has issued a detailed and well-reasoned report recommending that the Court deny Petitioner's claims for relief without an evidentiary hearing and dismiss the petition with prejudice. See Doc. No. 31. Moreover, Judge Adler construed Petitioner's request to add a fourth claim as a motion to amend the petition, and recommends the Court deny Petitioner's motion to amend the petition. Petitioner objects to the Report and Recommendation on multiple grounds. See Doc. No. 36. For the reasons set forth below, the Court OVERRULES Petitioner's objections and ADOPTS the Report and Recommendation in its entirety.

DISCUSSION

1. Standard of Review

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the 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 [judge]." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

2. Analysis

Petitioner objects to Judge Adler's findings and recommendations as to all claims raised in his petition. Petitioner's objections are primarily based on the arguments raised in his petition and traverse. Judge Adler thoroughly addresses those arguments in the Report and Recommendation. After conducting a de novo review of the entire record, the Court finds that Petitioner's objections are without merit. Further discussion is warranted only with respect to Petitioner's claim that the trial court transcripts were "flawed" and "falsified."

Petitioner claims that his due process rights were violated because of numerous inaccuracies and omissions in the trial transcript. The Supreme Court has recognized that substantive due process includes a criminal defendant's right to obtain a trial transcript for purposes of appeal. Mayer v. Chicago, 404 U.S. 189, 193-95 (1971). A court need only provide an indigent defendant with a "record of sufficient completeness" to prepare an appeal; irrelevant or extraneous portions of the transcript may be omitted. Id. at 194-95 (citation omitted). There is no constitutional right to a totally accurate transcript of a state criminal trial. Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir. 1993). A constitutional violation would occur only if the inaccuracies in the transcript adversely affected appellate review in the state courts. Id .; see also United States v. Anzalone, 886 F.2d 229, 232 (9th Cir. 1989) ("[A]ssuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice.").

While Petitioner claims that his trial transcripts were altered or flawed, he produces no evidence to support this assertion. Rather, Petitioner's claim is based on unsupported speculation. It has long been established that a reporter's transcript is presumed to be correct. Abatino v. United States, 750 F.2d 1442, 1445 (9th Cir. 1985); United States v. Hoffman, 607 F.2d 280, 286 (9th Cir. 1979); Soo Hoo Hung v. Nagle, 3 F.2d 267, 268 (9th Cir. 1925); see also People v. Kronemyer, 189 Cal.App.3d 314, 358-59 (1987) (characterizing reporter's transcript as "presumptively correct"). The party seeking to rebut this presumption must present a reason why a court should suspect an inaccuracy. Norris v. Schotten, 146 F.3d 314, 333 (6th Cir. 1998) (holding that a petitioner's speculation is insufficient to question trial transcripts as inaccurate). Petitioner's unsupported assertions of inaccuracy cannot serve to rebut the presumption and are without merit.

Moreover, Petitioner has failed to demonstrate prejudice arising from any alleged alteration or omission. Petitioner's speculation that inaccurate portions of the record may have reflected reversible error is not enough. See Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986) (explaining that a petitioner must present some "modicum of evidence" that omissions from trial transcript denied right to fair appeal).

Accordingly, the Court concludes Judge Adler issued an accurate report and well-reasoned recommendation that both the petition and the motion to amend the petition be denied. The Court OVERRULES Petitioner's objections and ADOPTS the Report and Recommendation in its entirety. The Court DENIES Petitioner's petition with prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner has not made the requisite showing. Accordingly, the Court declines to issue a certificate of appealability as to any claims or issues raised in his petition.

CONCLUSION

Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety and DISMISSES Petitioner's Petition for Writ of Habeas Corpus with prejudice. The Court DECLINES to issue a Certificate of Appealability.

The Clerk of Court shall terminate this case and enter judgment in favor of Respondent.

IT IS SO ORDERED.


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