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Austin v. Brazelton

United States District Court, S.D. California

July 22, 2016

GEORGE AUSTIN, Petitioner,
P.D. BRAZELTON, Respondent.


          Hon Cynthia Bashant, United States District Judge.

         On 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.

         On 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.

         For the 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 evidentiary hearing.


         The 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.).

         II. ANALYSIS[1]

         A. Speedy Trial Violation

         Petitioner’s 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.)

         Upon 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.

         B. Gang Expert Testimony

         In his 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. 2009)).

         Citing 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.

         C. ...

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