Steven W. Neff v. Wofford, No. 2:2013cv08460 - Document 33 (C.D. Cal. 2015)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Andre Birotte Jr for Report and Recommendation (Issued) 28 . Having reviewed de novo those portions of the R&R to which objections were filed, the Court accepts the findings and recommendations of the Magistrate Judge. IT IS ORDERED that the Petition is denied and Judgment be entered dismissing this action with prejudice. (See Order for details) (bem)
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Steven W. Neff v. Wofford Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEVEN W. NEFF, Petitioner, 12 13 vs. 14 WARDEN WOFFORD, Respondent. 15 ) ) ) ) ) ) ) ) ) ) Case No. CV 13-8460-AB (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 16 The Court has reviewed the Petition, records on file, and 17 See 28 18 Report and Recommendation of U.S. Magistrate Judge. 19 U.S.C. § 636. 20 Magistrate Judge. 21 to the R&R, in which he mostly repeats arguments from the 22 Petition and Reply. The R&R was prepared by a previously assigned On August 3, 2015, Petitioner filed objections 23 Petitioner asserts that the Magistrate Judge “misconstrues 24 [his] principal claim of Double Jeopardy” (Objections at 4) and 25 that the R&R is “non-responsive” to his actual claim (id. at 7- 26 8). 27 could not reach a verdict on rape, which, the jury was 28 instructed, involved penetration by a penis, and separately He seems to argue that because the jury in his first trial 1 Dockets.Justia.com 1 considered and convicted him of attempted sexual penetration by a 2 foreign (not an unknown) object, which necessarily excluded a 3 penis, double jeopardy prevented him from being tried in his 4 second trial for attempted sexual penetration by an unknown 5 object. 6 (See id. at 1-3, 6-10.) But as the state court of appeal (Lodged Doc. 4 at 8) and 7 Magistrate Judge (R&R at 14) both noted, attempted sexual 8 penetration by a foreign object and attempted sexual penetration 9 by an unknown object are not two different offenses; the 10 penetration may be attempted by either “any foreign object . . . 11 or by any unknown object,” Cal. Penal Code § 289(k)(1). 12 assuming the “foreign object” jury instructions at the first 13 trial defined a different offense, that offense would not qualify 14 as a lesser-included offense of rape by penis because rape would 15 not include all the statutory elements of attempted sexual 16 penetration; the latter would encompass only attempted 17 penetration by objects other than a penis, according to 18 Petitioner’s theory. 19 (2012) (offense is necessarily included within another offense 20 under “elements test” if “the statutory elements of the greater 21 offense include all of the statutory elements of the lesser 22 offense, such that all legal elements of the lesser offense are 23 also elements of the greater”). 24 his implied acquittal of rape barred retrial of attempted sexual 25 penetration because the latter was a lesser-included offense is 26 unavailing. And even See People v. Bailey, 54 Cal. 4th 740, 748 Thus, Petitioner’s argument that 27 Moreover, as the court of appeal (Lodged Doc. 4 at 6) and 28 Magistrate Judge (R&R at 13) noted, the Double Jeopardy Clause 2 1 does not bar retrial of a defendant whose conviction was set 2 aside because of an error in the proceedings, see Lockhart v. 3 Nelson, 488 U.S. 33, 38 (1988), which was the case here: 4 Petitioner was retried after he successfully moved for a new 5 trial based on instructional error. 6 on Yeager v. United States, 557 U.S. 110 (2009) (Objections at 4- 7 5, 9-10), does not help him. 8 9 Thus, Petitioner’s reliance Having reviewed de novo those portions of the R&R to which objections were filed, the Court accepts the findings and 10 recommendations of the Magistrate Judge. 11 Petition is denied and Judgment be entered dismissing this action 12 with prejudice. IT IS ORDERED that the 13 14 15 16 17 DATED: October 19, 2015 ANDRÉ BIROTTE JR. U.S. DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3
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