United States District Court, S.D. California
ORDER: (1) OVERRULING PETITIONER'S OBJECTIONS
(ECF NOS. 75, 79, 81); (2) ADOPTING REPORT AND RECOMMENDATION
(ECF NO. 74); AND (3) GRANTING RESPONDENT'S MOTION TO
DISMISS SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
(ECF NO. 64)
Cynthia Bashant United States District Judge.
filed a Second Amended Petition for Habeas Corpus arguing
that he “is eligible for resentencing as a matter of
law under § 1170.18(a) [Proposition 47].” (ECF No.
61 (“Petition”) at 6.) He claims that the failure
of the state court to grant his request for resentencing
violated his constitutional right to due process and equal
protection. (Petition ¶ 48.)
moved to dismiss arguing that the Petition failed to state a
constitutional claim. (ECF No. 64.) Magistrate Judge Stormes
filed a Report and Recommendation (“R&R”)
recommending that the Court grant the Motion to Dismiss. (ECF
No. 74.) Petitioner objects to this R&R. (ECF Nos. 75,
reviewed the R&R de novo, the Court agrees with
the Magistrate Judge, and therefore
OVERRULES the Objections (ECF Nos. 75, 79,
81) and ADOPTS the R&R in its entirety.
Court reviews de novo those portions of a Magistrate
Judge's R&R to which objections are made. 28 U.S.C.
§ 636(b)(1). The Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. “The
statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,
” however, “that the district judge must review
the magistrate judge's findings and recommendations de
novo if objection is made, but not otherwise.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in original).
“Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and
recommendations that the parties themselves accept as
correct.” Reyna-Tapia, 328 F.3d at 1121.
must be written and specific. See, e.g., Fed. R.
Civ. Pr. 72(b)(2) (“[A] party may serve and file
specific written objections to the proposed findings and
recommendations” of the magistrate judge. In the
absence of specific objection, the clear weight of authority
indicates that the court need only satisfy itself that there
is no “clear error” on the face of the record
before adopting the magistrate judge's recommendation.
See, e.g., Fed.R.Civ.P. 72(b) Advisory Comm. Notes
(1983) (citing Campbell v. United States Dist.
Court, 501 F.3d 196 (9th Cir. 1974)).
October 8, 2010, Petitioner pled guilty to one count of
robbery. (Lodgment 1; Lodgment 6 at 1). Proposition 47,
codified as California Penal Code § 1170.18, was a
ballot initiative passed by the California voters after
Petitioner was sentenced for his robbery conviction. Under
§ 1170.18, certain felony drug possession and theft
convictions could be reduced to misdemeanors upon application
to the trial court.
State Court denied Petitioner's habeas petition
requesting resentencing under this statute, noting both that
Petitioner had failed to apply to the trial court for
resentencing and that robbery is not one of the crimes
covered under § 1170.18. (Lodgment 4.)
files this habeas petition claiming the State Court ruling
violated his constitutional right against equal protection
and due process. The Magistrate Judge recommended that this
Court grant Respondent's Motion to Dismiss noting that
“the fact that Thornberry appended references to
federal due process and equal protection rights to his claim
does not transform it into a federal claim.” (R&R
at 4-5 (citing Langford v. Day, 110 F.3d 1380, 1389
(9th Cir. 1996); Little v. Crawford, 449 F.3d 1075,
1081-82 (9th Cir. 2006).
original objections (ECF No. 75), Petitioner argues that
arbitrary denial of his resentencing, without consideration
of the offense conduct underlying his conviction, violates
due process. In Langford v. Day, 110 F.3d 1380 (9th
Cir. 1996), the petitioner made a similar claim arguing that
he was denied due process because the state court applied the
wrong standard when the court refused to allow him to
withdraw his guilty plea. 110 F.3d at 1389. The Ninth Circuit
pointed out that a petitioner “may not, however,
transform a state-law issue into a federal one merely by
asserting a violation of due process. We accept a state
court's interpretation of state law . . . and alleged
errors in the application of state law are not cognizable in
federal habeas corpus.” Id. (citation
omitted). The same rule applies ...