United States District Court, S.D. California
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [DOC.
NO. 13]; (2) GRANTING MOTION FOR LEAVE TO ASSERT PROCEDURAL
DEFAULTS [DOC. NO. 11]; (3) REJECTING PETITIONER'S
OBJECTIONS; (4) DENYING PETITION; AND (5) DENYING CERTIFICATE
Cathy Ann Bencivengo United States District Judge.
Ozua (“Petitioner”), is a state prisoner
proceeding pro se with a Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C.
§ 2254. [Doc. No. 1.] On March 28, 2017, Magistrate
Judge Nita Stormes issued a Report and Recommendation
(“Report”) to grant the motion for leave to
assert procedural defaults and to deny the Petition. [Doc.
No. 13.] On April 25, 2017, Petitioner filed a Traverse.
[Doc. No. 16.] On May 1, 2017, Petitioner filed an objection
to the Report. [Doc. No. 18.]
de novo review of Petitioner's claims, the Court
finds the Report to be thorough, complete, and an accurate
analysis of the legal issues presented in the petition. For
the reasons explained below, the Court: (1) adopts the Report
in full; (2) grants the motion for leave to assert procedural
defaults in the Answer; (3) rejects Petitioner's
objections; (4) denies the Petition for Writ of Habeas
Corpus; and (5) denies a certificate of appealability.
Report contains an accurate description of the crime [Doc.
No. 13 at 5-6], and is hereby incorporated by reference.
State Procedural Background
Report contains a complete and accurate summary of the state
court proceedings, and the Court fully adopts the
Report's statement of state procedural background.
Federal Procedural Background
October 3, 2016, Petitioner filed a Petition for Writ of
Habeas Corpus challenging his San Diego Superior Court
conviction. [Doc. No. 1.] On February 7, 2017, Respondent
filed an Answer to the Petition, and lodged portions of the
state court record. [Doc. Nos. 10 and 12.] Respondents also
filed a motion for leave to assert procedural defaults in
Answer to Petition for Writ of Habeas Corpus. [Doc. No. 11.]
March 28, 2017, Magistrate Judge Stormes issued a Report
recommending that the motion for leave to assert procedural
defaults in the Answer be granted, and that the petition be
denied. [Doc. No. 13.] On April 25, 2017, Petitioner filed a
Traverse. [Doc. No. 16.] On May 1, 2017, Petitioner filed
Objections to the Report. [Doc. No. 18.] In his objections,
Petitioner requests that the Court consider his Traverse,
which was filed after the Report. Assuming Petitioner has
objected to the Report in its entirety, the Court reviews the
Report de novo. 28 U.S.C. § 636(b)(1)(C);
Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir.
Report sets forth the correct standard of review for a
petition for writ of habeas corpus. ...