United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 1.)
GONZALO P. CURIEL, District Judge.
Petitioner Levi James ("Petitioner"), a state prisoner proceeding pro per, filed a Petition for Writ of Habeas Corpus ("Petitioner") under 28 U.S.C. § 2254. (ECF No. 1.) Respondent, Heidi Lackner ("Respondent"), filed an answer to the Petition, (ECF No. 4), and Petitioner filed his Traverse. (ECF No. 8.) On June 3, 2014, pursuant to 28 U.S.C. § 636(b)(1), the Honorable William V. Gallo, United States Magistrate Judge ("Magistrate Judge") submitted a report and recommendation ("R&R"), recommending that this Court deny the Petition. (ECF No. 9.) After a thorough review of the issues and for the reasons set forth below, this Court ADOPTS the Magistrate Judge's R&R and DENIES the Petition.
Following a jury trial, Petitioner was convicted on June 7, 2012 in San Diego County Superior Court Case number SCN302219 of four counts: (1) robbery; (2) assault with a deadly weapon; (3) burglary; and (4) and petty theft. (Lodgment No. 1 at 18-21.) Petitioner was sentenced to a total prison term of four years and eight months. (Id. at 159-60, 178.)
Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) On June 26, 2013, the appellate court affirmed Petitioner's conviction as to counts (1)-(3) and reversed his conviction for petty theft in count (4), finding that it was a lesser included offense of robbery in Petitioner's case. (Lodgment No. 6 at 9.) Petitioner then filed a Petition for Review in the California Supreme Court, (Lodgment No. 7), and the California Supreme Court denied the petition without comment on September 11, 2013. (Lodgment No. 8.)
On December 6, 2013, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition"). (ECF No. 1.) In his Petition, Petitioner alleges that his Constitutional right to due process was violated by the state court "failing to Sua Sponte grant a mistrial after the government's witness failed to obey in limine orders of the court." (Id. at 14-15.) Petitioner also contends that his Constitutional right to access to the courts has been violated because he has received his legal mail with significant delay and opened by staff while in custody. (Id. at 14.) However, Petitioner concedes that this claim concerning his legal mail is unexhausted. (Id.)
On February 11, 2014, Respondent filed an answer to the Petition. (ECF No. 14.) On March 10, 2014, Petitioner filed his Traverse. (ECF No. 8.) On June 3, 2014, after fully considering the Petition, Respondent's answer, and Petitioner's Traverse, the Magistrate Judge issued the R&R, recommending this Court deny the Petition. (ECF No. 9.)
III. LEGAL STANDARD
In reviewing a magistrate judge's report and recommendation, a 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 Fed.R.Civ.P. 72(b). However, when neither party timely objects to the magistrate judge's proposed findings of fact, the district court "may assume their correctness and decide the motion on the applicable law." Campbell v. U.S. Dist. Court for the N. Dist. of Cal. , 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. " Barilla v. Ervin , 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist. , 708 F.2d 452, 454 (9th Cir. 1983)).
A. Petitioner's Claims
The Court received no objections to the R&R and no request for an extension of time in which to file any objections. Therefore, the Court assumes the correctness of the Magistrate Judge's factual findings and adopts them in full. The Court has conducted a de novo review, independently reviewing the R&R and all relevant papers submitted by both parties, and finds that the R&R provides a correct analysis of the claims presented in the instant petition.
Accordingly, the Court ADOPTS the recommendation that Petitioner's due process claim be denied, and DENIES Petitioner's ...