-AN Justin Sung Hong v. Greg Lewis, No. 2:2011cv03910 - Document 20 (C.D. Cal. 2011)

Court Description: ORDER ACCEPTING THE FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE by Judge Gary A. Feess for Report and Recommendation 18 . (rla)

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-AN Justin Sung Hong v. Greg Lewis Doc. 20 1 2 '" CFl'LeED. SOUTHERN DIVISION 3 RK, U.S. DISTRICT COURT 4 DEC 282011 5 CENTR,t\L DISTRICT OF CALIFORNIA BY ~ DEPUTY 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 \VESTERN DIVISION 11 12 JUSTIN SUNG HONG, Petitioner, 13 14 v. 15 Case No. CV 11-03910 GAF (AN) ORDER ACCEPTING THE FINDINGS AND RECOMlVIENDATION OF THE UNITED STATES MAGISTRATE JUDGE GREG LEWIS, Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the file, including the 19 Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objections 20 (dkt. 19) filed by his retained counsel. Further, the Court has completed a de novo 21 review of those portions of the R&R to which Petitioner has objected, and makes the 22 following findings and rulings: 23 24 25 1. Petitioner's Objections disclose he objects to the Magistrate Judge's findings and conclusions on two grounds. First, Petitioner objects to the R&R based upon his contention that the 26 Magistrate Judge erred in finding he is not entitled to relief on his instructional error 27 claim presented in ground one because the Magistrate Judge "heavily" relied upon 28 Trent v. Evans, 309 Fed. Appx. 201, 203 (9th Cir. 2009), and that his reliance was Dockets.Justia.com 1 "misplaced" because that case is inapposite. (Objections at 1-6.) The Court finds there 2 is no merit to Petitioner's first objection. Contrary to Petitioner's assertion, the 3 Magistrate Judge did not rely heavily upon Trent and he merely cited it for its 4 persuasive value pursuant to Ninth Circuit Rule 36-6. (R&R at 15: 12-19.) [n making 5 this objection, Petitioner not only takes the Magistrate Judge's citation to Trent out of 6 context, but he ignores the other points and authorities that demonstrate Petitioner is 7 not entitled to reliefon ground one for the reasons explained in the R&R. In particular, 8 Petitioner's arguments in support ofthis objection fail to show the alleged instructional 9 error as to the natural and probable consequences theory misled the jury or otherwise 10 11 resulted in an unfair trial in light of all the other instructions. Second, Petitioner objects to the R&R based upon his contention that the 12 Magistrate Judge erred in finding his second instructional error claim in ground two 13 was procedurally barred. (Objections at 7-11.) In making this second objection, 14 Petitioner also contends "the federal courts have thus far not had an opportunity to 15 address this issue because it is relatively new." (Objections at 10.) The Court finds 16 Petitioner's second objection is meritless. Petitioner's contentions, as well as his 17 continued reliance on state cases, ignore the statutory mandate that a federal court may 18 not grant a state prisoner's application for habeas relief for any claim adjudicated on 19 the merits in state court proceedings unless the adjudication of the claim resulted in a 20 decision that was "contrary to, or involved an unreasonable application of, clearly 21 established Federal law. as determined by the Supreme Court ofthe United States." § 22 2254(d) (emphasis added). Indeed, to the extent Petitioner contends ground two raises 23 a novel issue that boldly goes where no federal courts have gone before, the state 24 courts' rejection ofthis claim could not be contrary to, or an unreasonable application 25 of, clearly established Supreme Court precedent. § 2254 (d). Further, in light of the 26 instructions as a whole, it cannot be said the state court's reasoning and conclusion in 27 denying ground two were contrary to, or unreasonable applications of, the clearly 28 established Supreme Court precedent that is cited in the R&R. § 2254(d). Page 2 of3 1 Based upon the foregoing, Petitioner's Objections are ovenu1ed. 2 2. The Court accepts the findings and recommendation of the R&R. 3 3. Judgment shall be entered denying the Petition and dismissing this action with prejudice. 4 5 4. All motions are denied as moot and tenninated. 6 7 8 IT IS FURTHER ORDERED that the clerk ofthe Court shall serve a copy ofthis Order and the Judgment on all counselor parties of record. 9 10 11 Dated: December 27,2011 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 of3

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