Ellis v. Harrison

          ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

          S. JAMES OTERO UNITED STATES DISTRICT JUDGE.

         Pursuant to 28 U.S.C. Section 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. Petitioner, through his counsel at the Federal Public Defender's Office, has filed Objections to the Court's April 19, 2016 Report and Recommendation ("R&R"), which recommends denial of the pending habeas petition and dismissal of this case. (See Docket Nos. 85 (R&R) and 90 (Objections).) The Court has engaged in a de novo review of those portions of the R&R to which Petitioner has objected.

         Notwithstanding Petitioner’s Objections, the Court accepts the findings and recommendations of the Magistrate Judge.

         PETITIONER’S OBJECTIONS

         The gravamen of the Objections is that the R&R mistakenly analyzed Petitioner's primary ground for relief, Claim One(a) of the Petition. Petitioner states that "Claim One(a) [ ] alleges that he was deprived of his right under the Sixth Amendment to the effective assistance of counsel because his trial counsel's deep racial prejudice against his client created an actual conflict of interest." (Objections at 1.) Petitioner goes on to state that "[t]o give an African-American defendant a legal defender who harbors nothing but ‘deep and utter contempt for African Americans’ . . . is to subvert the rules of justice as they stood at the time of [Petitioner's] conviction." (Objections at 6, citing Mayfield v. Woodford, 270 F.3d 915, 939 (9th Cir. 2001) (Graber, J., dissenting).) Petitioner also states that he is "not trying prove his actual innocence; he [is] trying to prove he had received an unfair trial because his counsel's racism placed him in conflict with his African-American client." (Objections at 7.)

         The Court construes the Objections essentially to raise five issues:

(1) The "Factual Background" of the R&R improperly included the Magistrate Judge's own review of the record in addition to facts explicitly found by the California state courts;

(2) The R&R failed to determine whether AEDPA's deferential standard of review should apply to review of Claim One(a), or whether it should be reviewed de novo;

(3) The R&R improperly "conflated" its review of Claim One(a) under Teague v. Lane, 489 U.S. 288 (1989), with the standard of review set forth at 28 U.S.C. § 2254(d);

(4) The R&R improperly determined that habeas relief on Claim One(a) would necessitate creation of a "new rule" that would contravene Teague; and

(5) Petitioner is entitled a Certificate of Appealability.

         Petitioner argues that "[b]ecause [Petitioner] has shown that 28 U.S.C. § 2254 does not apply to his claim [Claim One(a)] - or alternatively, that its requirements are met - and because he has shown that the applicable law is retroactive under sufficient federal precedent, the Report should be rejected and/or amended. Alternatively, because the claim is at least debatable among jurists of reason, this Court should issue a certificate of appealability." (Objections at 1-2.)

         DISCUSSION

         Petitioner's objections to the "Factual Background" are conclusory and unavailing. This case has a long procedural history and, in order to make the various factual summaries from the state courts and the omitted records of pertinent facts coherent and readable, the R&R combined facts that were "found" by the state courts with facts evidenced in the record. Petitioner does not challenge any particular "finding of fact, " and the R&R does not rely on any facts set forth in the factual background as "state court findings of fact." The R&R merely summarizes the factual background of the case based on an "independent review" of the record. Because Petitioner does ...