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Zepeda v. Figueroa

United States District Court, S.D. California

June 11, 2014

ROBERT ZEPEDA, Petitioner,
F.E. FIGUEROA, et al., Respondents.


CYNTHIA BASHANT, District Judge.

On October 11, 2011, Petitioner Robert Zepeda, a state prisoner proceeding pro se, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 seeking relief from a 10-year stipulated sentence imposed on July 23, 2010 for robbery and assault upon another with a firearm with a gang enhancement. On March 22, 2012, Petitioner filed a First Amended Petition ("FAP"). On January 2, 2014, United States Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report") recommending that this Court deny the FAP. Petitioner filed objections to the Report.

For the following reasons, the Court OVERRULES Petitioner's objections, ADOPTS the Report in its entirety, and DENIES the FAP.


The Court reviews de novo those portions of the R&R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. But "[t]he statute [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." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121. This rule of law is well-established in the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R."); Nelson v. Giurbino, 395 F.Supp.2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F.Supp.2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).


Petitioner asserts five claims in his FAP: (1) Ineffective Assistance of Counsel; (2) "Guilty Plea Coerced"; (3) "Guilty Plea Not Intelligent'"; (4) "Sentence in Excess of Statutory Maximum not based on Jury Findings"; and (5) "Withdrawal/Vacate Plea." In a thorough Report, Judge Brooks found that all of Petitioner's claims lacked merit and recommended that this Court deny the FAP in its entirety. Petitioner objects to Judge Brooks' findings and recommendations as to all claims raised in his FAP. Respondent did not file a reply.

A. Claim One: Ineffective Assistance of Counsel

Petitioner presents three arguments in his objections in response to Judge Brooks' recommendation that the Court deny Petitioner's first claim: (1) Judge Brooks overlooked the affidavit of Elizabeth Ochoa, Petitioner's sister, in reaching his conclusion; (2) Judge Brooks erred in not allowing an evidentiary hearing; and (3) the state court failed to properly apply the "two-pronged cause and prejudice standard, ' of Strickland, " thus Judge Brooks' reliance on that opinion is erroneous. (Pet'r's Objections 1:24-4:15.) Upon reviewing Petitioner's claim de novo, the Court finds that Petitioner's arguments lack merit.

Beginning with Judge Brooks' consideration of Ms. Ochoa's affidavit, Petitioner is mistaken that the affidavit was not considered. In the Report, Judge Brooks identified Ms. Ochoa's affidavit and found that the state court of appeals "weighed the evidence"-including Ms. Ochoa's statements-and rejected Petitioner's claim. (Report 16 n.5, 20:13-21:3.) He further found that the factual determinations by the state courts were not objectively unreasonable. ( Id. at 20:13-21:23.) Judge Brooks' references to Ms. Ochoa's statements demonstrate that he considered their impact in reaching his conclusion. Therefore, Petitioner fails to persuade this Court that Ms. Ochoa's affidavit was not properly considered by Judge Brooks.

Judge Brooks also addressed Petitioner's request for an evidentiary hearing, concluding that Petitioner fails to carry his burden under Townsend v. Sain, 372 U.S. 273 (1963). Petitioner's argument appears to presume that Ms. Ochoa's statements need to be produced through an evidentiary hearing, but Judge Brooks was aware of her statements stating that she saw Petitioner sign a blank plea agreement form. ( See Report 26:22-27:4.) Judge Brooks also noted that Ms. Ochoa's statements conflict with the rest of the evidence in the record. ( Id. ) Given that the substance of Ms. Ochoa's statements were known, Petitioner fails to show a compelling need for an evidentiary hearing, but more importantly, fails to demonstrate that Judge Brooks' conclusion was erroneous.

Finally, in arguing that Judge Brooks failed to properly apply a standard under Strickland, Petitioner actually attacks the validity of the state court of appeals' opinion. He contends that because the state court of appeals' opinion was "fundamentally flawed, " Judge Brooks' reliance on it was erroneous. (Pet'r's Objections 4:5-16.) Petitioner fails to direct this Court to anything in the record that shows that the state court's reasoning was based on faulty reasoning. Thus, the Court rejects this argument as well.

Accordingly, the Court agrees with Judge Brooks' sound reasoning that Petitioner's first claim for ...

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