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Ozua v. Sutton

United States District Court, S.D. California

June 23, 2017

KENNETH OZUA, Petitioner,
v.
JOHN SUTTON, Respondent.

          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 OF APPEALABILITY

          Hon. Cathy Ann Bencivengo United States District Judge.

         Kenneth 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.]

         Following 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.

         BACKGROUND

         I. Factual Background

         The Report contains an accurate description of the crime [Doc. No. 13 at 5-6], and is hereby incorporated by reference.

         II. State Procedural Background

         The 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.

         III. Federal Procedural Background

         On 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.]

         On 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. 2004).

         DISCUSSION

         I. Legal Standard

         The Report sets forth the correct standard of review for a petition for writ of habeas corpus. ...


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