United States District Court, C.D. California
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
STEPHEN V. WILSON, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally lack merit for the reasons set forth in the Report and Recommendation. There are two issues, however, that warrant brief amplification here.
First, Petitioner claims in his Objections that the Court has misconstrued his claims and refers the Court back to his Amended Petition as proof of the claims he presented to the Court. (Obj. at 1, 4, 12, 22, 36.) The Court notes that Petitioner's claims have evolved throughout this litigation, not always for reasons within Petitioner's control. Yet, Petitioner informed this Court in his June 15, 2010 Memorandum that his response to Respondent's Answer "may be viewed by the Court as both an initial statement of all of Petitioner's underlying claims and a reply to the Attorney General's opposition brief." (Mem. at 5.) Based on this representation, the Court analyzed Petitioners claims as they were presented in his Reply to the Answer. Petitioner cannot now change his mind about which pleading he wishes the Court to consider.
Next, Petitioner proposes that the better framework for considering the prosecutor's reference to Petitioner's retention of counsel is that of prosecutorial misconduct generally, rather than a directed analysis of the case law related to such a factual scenario. (Obj. at 1-2, 12-13.) This is because, as Petitioner acknowledges, there is no clearly established Supreme Court precedent finding prosecutorial misconduct under factually analogous circumstances. (Id. at 13.) However, a claim cannot be saved from a lack of clearly established Supreme Court precedent by reference to a general legal framework. See Vasquez v. Kirkland, 572 F.3d 1029, 1036-38 (9th Cir. 2009) (despite analytical framework for alleged confrontation clause violations, federal habeas relief not warranted where there were no factually analogous Supreme Court decisions finding a confrontation clause violation).
Nevertheless, even if the Court were to analyze Petitioner's argument as one of generalized prosecutorial misconduct, his claim still fails. As explained in the Report and Recommendation, the Court found that the prosecutor's statements did not have a "substantial or injurious effect or influence on the jury's verdict." (R&R at 30-31 (quoting Brecht v. Abrahamson, 507 U.S. 619 (1993).) This conclusion is fatal to a claim that the prosecutor's statements warrant federal habeas relief under a generalized prosecutorial misconduct theory. See Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (prosecutorial misconduct which rises to the level of a due process violation warrants habeas relief only if the misconduct is deemed prejudicial under Brecht).
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the First Amended Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 ...