United States District Court, S.D. California
ORDER: (1) OVERRULING PETITIONER’S OBJECTIONS;
(2) ADOPTING REPORT AND RECOMMENDATION; AND (3) DENYING
PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 18]
Cynthia Bashant, United States District Judge.
October 21, 2013, Petitioner George Austin, a state prisoner
proceeding pro se and in forma pauperis,
filed a Petition for Writ of Habeas Corpus, in which he
challenges his conviction for gang-related possession of a
firearm by a felon. He asserts the following claims: (1) his
right to a speedy trial was violated by a ten-day continuance
granted to the prosecution; (2) his right to due process was
violated by the admission of a gang expert’s opinion
testimony; (3) the collection of his DNA at the time of
arrest was an unreasonable search and seizure in violation of
the Fourth Amendment; and (4) his trial was rendered
fundamentally unfair by cumulative error. Petitioner also
later filed a document entitled “Motion of Judicial
Notice of Newly Discovered Evidence of Actual Innocence
Exculpatory DNA/Impeachment Evid.” (ECF No. 17), which
was docketed as a Request for Judicial Notice.
April 30, 2015, United States Magistrate Judge Ruben B.
Brooks issued a Report and Recommendation
(“Report”) recommending that this Court deny the
petition and deny Petitioner’s request for judicial
notice. (ECF No. 18.) Petitioner filed an Objection to the
Report and Recommendation (“Objection”) in which
he also requests an evidentiary hearing. (ECF No. 22.)
Respondent has not filed a reply to the Objection.
following reasons, the Court OVERRULES Petitioner’s
objections, APPROVES and ADOPTS the report, and DENIES the
Petition for Writ of Habeas Corpus and the request for an
Court reviews de novo those portions of the Report
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); 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 de novo). “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 an 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.).
Speedy Trial Violation
first objection is that no good cause existed to grant
continuance of his trial. (Objections 1, ECF No. 22) However,
Petitioner fails to identify any specific defect in the
Magistrate Judge’s reasoning or reading of the law.
Rather, he merely states that “the people . . .
violated [his] speedy trial rights and prejudiced [him],
” but does not support that proposition except by
summarily concluding that the continuance “allow[ed]
arbitrary inconclusive DNA evid[ence].” (Id.)
This is simply a reassertion of an argument addressed in the
Report. (See Report 22-23.)
review, this Court agrees with the Magistrate Judge’s
analysis and adopts it in its entirety. Petitioner fails to
show that he was prejudiced in any way by the continuance.
Gang Expert Testimony
second objection, relying on People v. Killebrew,
103 Cal.App.4th 644 (2002), Petitioner argues that the trial
court improperly admitted gang expert testimony. (Objections
2.) Even assuming admission of the expert testimony was a
violation of the standard outlined in Killebrew, in
order to be successful in a federal habeas petition,
Petitioner must also show the violation was one of federal
due process rights rendering his trial fundamentally unfair.
See Holley v. Yarlborough, 568 F.3d 1091, 1098 (9th
Cir. 2009) (“state court decisions are not subject to
federal habeas relief if they are merely erroneous and not
unreasonable”); Jammal v. Van de Kamp, 926
F.2d 918, 920 (9th Cir. 1991) (failure to comply with
state’s rules of evidence is not sufficient ground for
granting habeas relief). This Petitioner fails to do. The
Constitution is not violated by the admission of expert
testimony concerning an ultimate issue. See Studebaker v.
Uribe, 658 F.Supp.2d 1102, 115-16 (C.D. Cal. 2009)
(citing Moses v. Payne, 555 F.3d 742, 761 (9th Cir.
People v. Leach, 15 Cal.3d 419 (1975), Petitioner
also claims that “the standard for evaluating
evid[entiary] errors involving fed[eral] constitutional
rights is that such error mandates reversal unless the people
can establish beyond a reasonable doubt that the impropriety
was harmless.” (Objections 2.) However, Leach
too distinguishes state-law evidentiary errors from errors
involving federal constitutional rights. Petitioner does not
identify any such fundamental constitutional errors in the
admission of the gang-expert testimony. As a result, his
objection regarding gang-expert testimony lacks merit.