United States District Court, S.D. California
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION
(DOC. NO. 21), AND (2) DISMISSING PETITIONER'S WRIT OF
HABEAS CORPUS (DOC. NO. 1)
Hon.
Anthony J. Battaglia United States District Judge
Before
the Court is Petitioner Kevin Kenniston's petition for
Writ of Habeas Corpus. (Doc. No. 1.) In the Report and
Recommendation (“R&R”), (Doc. No. 21), the
Magistrate Judge recommended dismissing Kenniston's
federal petition for writ of habeas corpus. (Doc. No. 21.)
For the reasons stated herein, the Court
ADOPTS the R&R and
DISMISSES Kenniston's writ of habeas
corpus.
I.
BACKGROUND
After
being found guilty of various crimes, Kenniston appealed to
the California Court of Appeal arguing: (1) his due process
rights were violated when the trial court refused to sever
the charges; (2) the trial court improperly denied
Kenniston's request to substitute retained counsel for
appointed counsel; (3) his due process rights were violated
when the prosecutor made improper comments to the jury; and
(4) his right to effective assistance of counsel was violated
when defense counsel failed to object to the prosecutor's
improper comments. (See Doc. No. 11-40.)
Kenniston
submitted a “Supplemental Brief” to the appellate
court, on his own behalf. (ECF No. 8 at Ex. A, 22-53.) In it,
Kenniston argued the prosecutor failed to turn over
exculpatory evidence (grounds one and three), there was
insufficient evidence to support counts 1, 15, 18-20 and 22
(grounds two, four and seven), the court erred in permitting
expert testimony (ground five) and the prosecutor committed
misconduct during closing argument (ground six). (See
id.) In a letter, the California Court of Appeal
informed Kenniston that his pro se supplemental brief was
being forwarded to his appellate counsel to determine what,
if any, action should be taken. (Id., Ex. B at 56.)
The
appellate court ultimately affirmed Kenniston's
conviction in an unpublished opinion. The court addressed
only the claims raised in the brief submitted by
Kenniston's appellate counsel. (See Doc. No.
11-45.)
Kenniston
then submitted a “supplemental brief” to the
California Supreme Court, to which he appears to have
attached the supplemental brief he had attempted to submit to
the Court of Appeal. (See Doc. No. 11-43.) Appellate
counsel for Kenniston filed a petition for review, raising
the same four claims as those presented to the appellate
court. (Doc. No. 11-44.) The California Supreme Court issued
an order stating “The Petitions for review are
denied.” (Doc. No. 11-46.)
Kenniston,
a state prisoner proceeding pro se, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his San Diego Superior Court conviction in case
number SCS247814. (Doc. No. 1.) As stated in the R&R,
Kenniston raises ten claims:
(1) his due process rights were violated when the state
failed to turn over information about a prosecution witness;
(2) his due process rights were violated because there was
insufficient evidence to support his kidnapping conviction;
(3) his due process rights were violated when the trial court
permitted expert witness testimony and the prosecution failed
to provide discovery regarding the expert witness; (4) his
due process rights were violated because there was
insufficient evidence to support his conviction on counts 15
and 20; (5) his due process rights were violated because
there was insufficient evidence to support the true findings
on the allegations for impersonating a peace officer while
committing a felony, pursuant to California Penal Code
§§ 538d & 667.17 (counts 8, 10, 15, 20 and 22);
(6) his due process rights were violated because there was
insufficient evidence to support his convictions on counts 18
and 19; (7) his due process rights were violated when the
prosecution failed to provide exculpatory documents to the
defense; (8) his due process rights were violated by the
failure to sever the charges against him; (9) his right to
counsel was violated when the trial court denied his request
for a continuance in order to substitute retained counsel;
and (10) his Sixth Amendment rights were violated when he
received ineffective assistance of both trial and appellate
counsels.
(Doc. No. 21 at 18.)
In his
“Notice of Exhaustion, ” Kenniston stated that
while his federal petition has been pending before the Court,
he has been seeking habeas review in the state courts. (Doc.
No. 19.) Petitioner filed a petition for writ of habeas
corpus in San Diego Superior Court. (See Notice,
Doc. No. 19, Ex. A at 22.) In it, he raised 10 claims.
(See Id. at 23-30.) The San Diego Superior Court
denied his habeas petition in a reasoned decision. (See
id.) Kenniston then filed a petition with the California
Court of Appeal, raising the same 10 claims. (Id.,
Ex. B at 32-62.) The appellate court denied the petition in a
reasoned decision. (Id. at 64-65.) Finally,
Kenniston filed a petition for writ of habeas corpus in the
California Supreme Court, which was denied without comment or
citation. (Id. at 5.)
This
Court denied Kenniston's motion for stay as moot. (Doc.
No. 20.) Magistrate Judge Skomal submitted an R&R
directing judgment be denied against Kenniston. (Doc. No.
21.) Kenniston objected. (Doc. No. 32.)
II.
FACTUAL BACKGROUND
This
case's factual background was thoroughly detailed in
Magistrate Judge Skomal's R&R. (Doc. No. 21 at 2-12.)
This Court fully incorporates by reference the factual
background section of the R&R into this Order and will
reference pertinent facts as necessary for the Court's
analysis.
III.
LEGAL STANDARD
The
duties of the district court with respect to a
magistrate's judge's R&R are set forth in Federal
Rule of Civil Procedure 72(b) 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. § 636(b)(1); see
also United States v. Raddatz, 447 U.S. 667, 676 (1980);
United States v. Remsing, 874 F.2d 614, 617- 18 (9th
Cir. 1989).
As to
portions of the report to which no objection is made, the
Court may assume the correctness of the magistrate
judge's findings of fact and decide the motion on the
applicable law. Campbell v. U.S. Dist. Court, 501
F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson,
142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001). Under such
circumstances, the Ninth Circuit has held that failure to
file objections only relieves the trial court of its burden
to give de novo review to factual findings; conclusions of
law must still be reviewed de novo. See Robbins v.
Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
IV.
DISCUSSION
In his
objection, Kenniston makes five arguments: (1) his due
process rights were violated when the prosecutor failed to
turn over exculpatory evidence; (2) his due process rights
were violated when he was convicted on certain counts based
on insufficient evidence; (3) his due process rights were
violated by the trial court's failure to sever the
charges; (4) his Sixth Amendment right to counsel was
violated when the trial court denied his request to
substitute retained counsel for appointed counsel; and (5)
his Sixth Amendment right was violated because both his trial
and appellate counsel were ineffective assistance of counsel.
(See Doc. No. 32.)
A.
Brady Violation ...