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Penton v. Kernan

United States District Court, S.D. California

September 12, 2019

Anthony PENTON, Petitioner,
v.
Scott KERNAN, Warden, Respondent.

          ORDER

          Hon. William Q. Hayes United States District Judge.

         The matter before the Court is the Petitioner's Objections (ECF No. 66) to the Report and Recommendation (ECF No. 36) of the Magistrate Judge, recommending that the Court deny Petitioner's Writ of Habeas Corpus.

         BACKGROUND

         On January 31, 2006, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

         On October 6, 2006, Petitioner filed a First Amended Petition presenting only his exhausted claims. (ECF No. 21).

         On March 28, 2007, Respondents filed an Answer to the Petition.

         On August 31, 2007, the Magistrate Judge issued a Report and Recommendation recommending that this Court deny Petitioner's Writ of Habeas Corpus. (ECF No. 36). The Magistrate Judge recommended that the Court deny the claims that a new trial should have been granted under the due process clause, and the right to confrontation. The Magistrate Judge recommended that the Court deny Petitioner's claims that the Three Strike law is an ex post facto law and void for vagueness. The Magistrate Judge recommended that the Court deny Petitioner's claims of insufficiency of the evidence, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. The Magistrate Judge further recommended that the Court deny Petitioner's claim that the trial judge imposed “upper terms for his sentence based upon facts that were neither found by the jury nor admitted by Petitioner.” (ECF No. 36 at 25.) No objections were filed. On December 20, 2007, this Court adopted the Report and Recommendation in its entirety and entered judgment in favor of Respondent and against Petitioner. (ECF No. 45).

         On May 18, 2018, Petitioner filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). On August 28, 2018, this Court granted Petitioner's Motion for Relief from Judgment. The Court vacated the Judgment, and the portions of the Order adopting the Report and Recommendation and denying the Amended Petition for Writ of Habeas Corpus. (ECF No. 61). The Court granted leave to file objections to the Report and Recommendation. Id. at 8.

         On November 26, 2018, Petitioner filed Objections to the Report and Recommendation. (ECF No. 66).

         On April 19, 2019, Respondent filed a Response to the Petitioner's Objections to the Report and Recommendation. (ECF No. 70).

         On June 17, 2019, Petitioner filed a Reply in Support of Objections to the Report and Recommendation. (ECF No. 76).

         LEGAL STANDARD

         The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When the parties object to a Report and Recommendation, “[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1); see also Thomas v. Arn, 474 U.S. 140, 149-50 (1985). A district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).

         RULING ...


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