Kenniston v. McDonald

          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         The appellate court ultimately affirmed Kenniston's conviction in an unpublished opinion.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 ...