United States District Court, S.D. California
ORDER (1) OVERRULING PETITIONER'S OBJECTIONS; (2)
ADOPTING REPORT AND RECOMMENDATION; AND (3) DENYING PETITION
FOR WRIT OF HABEAS CORPUS (ECF NO. 13)
L. SAMMARTINO, UNITED STATES DISTRICT JUDGE
before the Court is Magistrate Judge William V. Gallo's
Report and Recommendation (“R&R, ” ECF No.
13), recommending that the Court deny Petitioner Tony
Jackson's Petition for Writ of Habeas Corpus (ECF No. 1).
Also before the Court is Petitioner's Objections to the
R&R (“Objs., ” ECF No. 14). Respondent filed
no objections or reply. Having considered the Parties'
arguments and the law, the Court OVERRULES
Petitioner's Objections, ADOPTS the
R&R in its entirety, and DENIES the
Judge Gallo's R&R contains a thorough and accurate
recitation of the factual and procedural history underlying
the case. See R&R at 2-7. This Order
incorporates by reference the background as set forth
Review of the Report and Recommendation
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)
set forth a district court's duties in connection with a
magistrate judge's report and recommendation. The
district court must “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations 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, 673-76 (1980);
United States v. Remsing, 874 F.2d 614, 617 (9th
Cir. 1989). In the absence of timely objection, however, the
Court “need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72 advisory
committee's note (citing Campbell v. U.S. Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974)).
Review of Habeas Corpus Petitions Under 28 U.S.C. §
Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) because it was
filed after April 24, 1996 and Petitioner is in custody
pursuant to the judgment of a state court. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a court
may not grant a habeas petition “with respect to any
claim that was adjudicated on the merits in State court
proceedings, ” 28 U.S.C. § 2254(d), unless the
state court's judgment “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States, ” § 2254(d)(1), or
“was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding, ” § 2254(d)(2).
there is no reasoned decision from the highest state court to
which the claim was presented, the court “looks
through” to the last reasoned state court decision and
presumes it provides the basis for the higher court's
denial of a claim or claims. See Ylst v. Nunnemaker,
501 U.S. 797, 805-06 (1991); Cannedy v. Adams, 706
F.3d 1148, 1156 (9th Cir. 2013), as amended on denial of
rehearing, 733 F.3d 794 (9th Cir. 2013), cert.
denied, 571 U.S. 1170 (2014). Where “the last
reasoned opinion on the claim explicitly imposes a procedural
default, [a court] will presume that a later decision
rejecting the claim did not silently disregard that bar and
consider the merits.” Ylst, 501 U.S. at 803.
court need not cite Supreme Court precedent when resolving a
habeas corpus claim. See Early v. Packer, 537 U.S.
3, 8 (2002). “[S]o long as neither the reasoning nor
the result of the state-court decision contradicts [Supreme
Court precedent, ]” the state court decision will not
be “contrary to” clearly established federal law.
Judge Gallo recommends that the Petition be denied because it
is procedurally barred under California's timeliness
rule. See generally R&R. Petitioner objects to
Magistrate Judge Gallo's finding that he failed to show
cause why the Petition should still be allowed. See
generally Objs. The Court reviews de novo those findings
to which Petitioner objects.