United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
A. KRONSTADT, UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition,
the other records on file herein, the Report and
Recommendation (“R&R”) of the United States
Magistrate Judge, and the Verified Objection to the R&R
filed by Petitioner on October 10, 2017
(“Objection” or “Obj.”). Further, the
Court has engaged in a de novo review of those
portions of the R&R to which objections have been made.
Objection, totaling 28 pages including the verification,
Petitioner re-states the history of the action, certain
evidence, and aspects of the R&R. See, e.g. Obj.
at 2-3, 5-9, and 13-17. However, it appears that Petitioner
also purports to raise new arguments not contained in his
Petition or other filings in the action. See, e.g.,
Obj. at 4, 9-12, 17-21.
this Court's Order of February 14, 2017 dismissing all
grounds other than Ground One, the Petition raises a single
ground for relief: Petitioner's claim that his appellate
counsel was “ineffective for filing a [People v.
Wende, 25 Cal.3d 436 (1979)] brief instead of raising
any specific instances of errors.” Petition at 11. The
R&R addressed this claim and recommended its denial.
See R&R at 15-19 (noting the “high
bar” of Strickland v. Washington, 466 U.S. 668
(1984) and additional burdens in challenging a Wende
brief, including showing a “‘reasonable
probability that, but for his counsel's unreasonable
failure to file a merits brief, [petitioner] would have
prevailed on his appeal'” (citing Smith v.
Robbins, 528 U.S. 259, 285-86 (2002)).
appears that Petitioner is seeking to raise a new theory -
that is, that his “appellate counsel['s] failure to
withdraw as counsel of record for Petitioner on direct appeal
and/or second appeal was ineffective assistance of counsel;
because, it deprived Petitioner of the right to have a new
counsel appointed.” Obj. at 9. Petitioner points to a
single line in his appellate counsel's declaration in
support of his submission of the Wende brief to the
California Court of Appeal in which counsel states
“'I do not at this time move to withdraw as counsel
of record and remain available to brief any issues that the
court requests.'” Obj. at 15; see also
Respondent's Notice of Lodging No. 14 at 1. Based upon
that line, Petitioner argues that counsel “[threw] in
the towel while remaining in the ring only to coerce
Petitioner into filing a Supplemental brief on his own in
order to circumvent Anders[']
requirements.” Obj. at 17. Petitioner asks whether
“counsel's failure to withdraw deprive[d]
petitioner of his or her right for appointment of new counsel
in light of” Anders v. California, 386 U.S.
738 (1988) and whether the California Court of Appeal
violated Petitioner's right to counsel on appeal under
Douglas v. California, 372 U.S. 353 (1963). Obj. at
9-12, 18-19 (also citing Evitts v. Lucey, 469 U.S.
387 (1985) and McCoy v. Court of Appeals of Wis., Dist.
1, 486 U.S. 429 (1988)).
down to its essence, Petitioner is now challenging the
constitutionality of California's Wende
procedure, asserting that in addition to committing
ineffective assistance in failing to brief alleged trial
errors but instead filing a Wende brief (an argument
addressed in the R&R), appellate counsel also provided
ineffective assistance in failing to move to withdraw as
Petitioner's counsel on appeal, instead remaining
available to brief any issues requested by the California
Court of Appeal, and the California Court of Appeal's
failure to sua sponte appoint new counsel to represent
Petitioner violated his Fourteenth Amendment rights
(arguments not raised in the Petition or addressed in the
district court has discretion, but is not required, to
consider evidence presented for the first time in a
party's objection to a magistrate judge's
recommendation.” United States v. Howell, 231
F.3d 615, 621 (9th Cir. 2000). However, “in making a
decision on whether to consider newly offered evidence, the
district court must actually exercise its discretion, rather
than summarily accepting or denying the motion.”
Id. at 622. Here, there are many reasons for the
Court to decline to consider the new evidence and arguments
offered by Petitioner - including: (i) whether
Petitioner's decision to raise new matter by way of
Objection was tactical (see Obj. at 7, noting
Petitioner did not file a reply to Respondent's Answer
because “he rest[s] on his entire Petition as an answer
to those claims against him”); (ii) whether Petitioner
has properly exhausted his state court remedies; (iii)
whether the record is fully developed; and (iv) whether
Respondent should have a further opportunity to respond.
in light of the fact that binding United States Supreme Court
precedent rejects Petitioner's new arguments, the Court
elects to consider the arguments and reject them. In
Smith v. Robbins, 528 U.S. 259 (2000), the Supreme
Court considered a Fourteenth Amendment challenge to
California's Wende procedure and found
“the Wende procedure, like the Anders
and McCoy procedures . . . affords adequate and
effective appellate review for criminal indigents. Thus,
there was no constitutional violation in this case simply
because the Wende procedure was used.”
Id. at 284. Although Petitioner takes issue with the
fact that his appellate counsel did not withdraw upon filing
the Wende brief, the Supreme Court held that that
very procedure was part of what made the Wende
procedure pass constitutional muster - by not leaving an
indigent defendant without representation and by providing
the appellate court an opportunity to order briefing if it
found arguable issues in its own review of the record.
Id. at 280. The R&R cited Smith at
pages 16, 17 and 19; Petitioner did not reference
Smith, and all of the authorities cited in the
Objection predate Smith. As contrary Supreme Court
authority controls, the Court finds the new arguments raised
in the Objection lack merit.
noted above, the Court has engaged in a de novo
review of those portions of the R&R to which objections
have been made, and has considered and rejected new arguments
by Petitioner raised in his Objection. The Court accepts the
findings and recommendation of the Magistrate Judge.
THEREFORE ORDERED that Judgment be entered denying the
petition and ...