United States District Court, C.D. California
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING
PHILIP S. GUTIERREZ, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), Petitioner's Objections to the R&R, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in his Petition and Traverse, and lack merit for the reasons set forth in the R&R. There are two issues, however, that warrant brief amplification here.
First, Petitioner notes, correctly, that the R&R appears to overlook the affidavit that Petitioner attached to his Traverse. ( See Objections at 2-3; Traverse at 30-33.) Therein, Petitioner's wife affirms that: (1) she was willing to testify at Petitioner's trial; (2) the prosecution prevented her from testifying; and (3) if allowed to testify, she would have told the jury that the victim - who testified for the prosecution - was "a crook" who had engaged in "identity theft and credit card fraud" with Petitioner. (Traverse at 32-33.)
As a rule, a prosecutorial misconduct claim may provide grounds for habeas relief only when deemed prejudicial under the harmless error test articulated in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). That is, relief is warranted only if the misconduct had a "substantial and injurious effect or influence in determining the jury's verdict." Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (citing Brecht, 507 U.S. at 637).
Here, Petitioner argues that his wife's testimony was "vital to Petitioners defense strategy of impeaching" the victim. (Objections at 2.) However, Petitioner's attorney raised the victim's alleged criminal activities during his cross-examination of both the victim and the investigating detective. ( See Lodg. No. 4 at 82-83, 86, 196.)
Thus, on this record - and particularly in light of the ample evidence at trial of Petitioner's guilt - the Court does not find the requisite prejudice here. ( See Lodg. No. 10 at 2-4); see also 28 U.S.C. § 2254(e)(1) (facts presumed correct).
Second, Petitioner argues that "there was no one present on [his] behalf" when the victim identified Petitioner in a photographic line-up. ( See Objections at 4.)
However, this line-up took place before Petitioner's arrest, and thus before the attachment of his Sixth Amendment right to counsel. ( See Lodg. No. 4 at 120, 177, 182, 224); see also United States v. Ash, 413 U.S. 300, 321 (1973); Kirby v. Illinois, 406 U.S. 682, 688 (1972).
Thus, Petitioner is not entitled to federal habeas relief.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this ...