United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF
JAMES OTERO UNITED STATES DISTRICT JUDGE.
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.
Petitioner’s Objections, the Court accepts the findings
and recommendations of the Magistrate Judge.
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.)
Court construes the Objections essentially to raise five
(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
(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.
(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.
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
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 ...