United States District Court, S.D. California
William Q. Hayes United States District Judge.
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.
January 31, 2006, Petitioner filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254.
October 6, 2006, Petitioner filed a First Amended Petition
presenting only his exhausted claims. (ECF No. 21).
March 28, 2007, Respondents filed an Answer to the Petition.
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).
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
November 26, 2018, Petitioner filed Objections to the Report
and Recommendation. (ECF No. 66).
April 19, 2019, Respondent filed a Response to the
Petitioner's Objections to the Report and Recommendation.
(ECF No. 70).
17, 2019, Petitioner filed a Reply in Support of Objections
to the Report and Recommendation. (ECF No. 76).
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).