Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harrington v. Davys

United States District Court, S.D. California

April 17, 2017

STEVE HARRINGTON, Petitioner,
v.
DAVE DAVYS; SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, Respondents.

          ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION, (DOC. NO. 22); (2) GRANTING MOTION TO DISMISS, (DOC. NO. 15); (3) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, (DOC. NO. 7); AND (4) DENYING CERTIFICATE OF APPEALABILITY

          Hon. Anthony J. Battaglia United States District Judge.

         On September 21, 2015, Petitioner Steve Harrington (“Petitioner”), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Doc. No. 1), which he amended on February 19, 2016 (“Petition”), (Doc. No. 7). The Petition challenges Petitioner's state court conviction for burglary. On July 13, 2016, Respondent filed a motion to dismiss the Petition. (Doc. No. 15.) Petitioner filed an opposition on August 18, 2016. (Doc. No. 20.)

         Magistrate Judge Jan M. Adler issued a report and recommendation (“R&R”) recommending Respondent's motion be granted and the Petition be dismissed. (Doc. No. 22.) On January 23, 2017, Petitioner filed timely objections to the R&R. (Doc. No. 28.) For the reasons set forth below, the Court ADOPTS the R&R, (Doc. No. 22), OVERRULES Petitioner's objections, (Doc. No. 28), DISMISSES the Petition WITH PREJUDICE, (Doc. No. 7), and DECLINES to issue a certificate of appealability.

         Background

         I. California State Court Proceedings

         On May 28, 2009, Petitioner was convicted of one count of burglary in violation of California Penal Code section 459 in San Diego Superior Court, Case No. SCD216977. (Doc. No. 1 at 1-2; Lodgment No. 1 at 1.) Petitioner directly appealed his conviction to the California Court of Appeal, which affirmed the trial court's conviction on March 15, 2011. (Lodgment No. 1 at 2.) On May 18, 2011, the California Supreme Court denied Petitioner's petition for review, thus affirming his conviction. (Doc. No. 1 at 2; Lodgment No. 2 at 3.) Petitioner did not seek review with the United States Supreme Court. (See Doc. No. 1 at 3.)

         On December 1, 2011, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court, challenging his 2009 burglary conviction. (Lodgment No. 5 at 2-3.) He argued his 14th Amendment right to due process was violated, asserting there was insufficient evidence to support the trial court's determination that his prior out-of-state burglary conviction was a serious felony. (Id.) On March 28, 2012, the California Supreme Court denied that petition. (Lodgment No. 6 at 1.)

         II. Federal Court Proceedings

         On August 31, 2011, Petitioner filed Harrington v. Neotti, No. 11-CV-2016-H-MDD, another petition for writ of habeas corpus. In that petition, Petitioner challenged his 2009 burglary conviction and sentence, arguing he was entitled to relief due to juror misconduct. (See Lodgment Nos. 2, 3.) District Judge Marilyn L. Huff issued an order denying that petition on the merits on September 13, 2012. (See Lodgment No. 2 at 6-7.)

         Petitioner instituted the instant Petition on September 21, 2015 (Doc. No. 1.) The Petition was dismissed without prejudice for Petitioner's failure to satisfy the filing fee requirement. (Doc. No. 2.) Proceeding in forma pauperis, Petitioner filed a first amended petition on February 19, 2016. (Doc. No. 7.) In this Petition, Petitioner argues his Sixth and Fourteenth Amendment rights were violated in SCD216977 by the trial court illegally enhancing his sentence and relying upon insufficient evidence in determining his prior out-of-state burglary conviction was a serious felony. (Id. at 6-7.)

         On July 13, 2016, Respondent filed a motion to dismiss, arguing the Petition is time barred and successive under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). (Doc. No. 15.) Petitioner opposed the motion on August 18, 2016. (Doc. No. 20.) On November 8, 2016, Magistrate Judge Adler issued an R&R in which he recommends the motion be granted and the Petition denied for being both time barred and successive. (Doc. No. 22.) Petitioner objected to the R&R on January 23, 2017, arguing only that the instant Petition has nothing to do with his prior federal petition. (Doc. No. 28.) This order follows.

         Legal Standard

         The Petition is governed by the AEDPA, applying a “‘highly deferential standard for evaluating state-court rulings, ' which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 & n.7 (1997)). Federal habeas relief may be granted if the state court (1) applied a rule different from the governing law provided by the United States Supreme Court; or (2) correctly identified the governing legal principle, but unreasonably applied it to the facts of the case. Bell v. Cone, 535 U.S. 685, 694 (2002).

         The duties of the district court with respect to a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those portions of the report . . . to which objection is made” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.