Larry Charles Cleveland v. J. Soto, No. 2:2016cv02118 - Document 75 (C.D. Cal. 2019)
Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for Report and Recommendation (Issued) 65 . Nothing else in the Objections gives the Court pause or concern or need be addressed. Having completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. (ec)
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Larry Charles Cleveland v. J. Soto Doc. 75 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LARRY CHARLES CLEVELAND, 12 13 14 Case No. 2:16-cv-02118-DSF (GJS) Petitioner v. J. SOTO, Warden, 15 ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 19 Petition (“Petition”), all pleadings and other documents filed in this action, the 20 Report and Recommendation of United States Magistrate Judge [Dkt. 65, “Report”], 21 and Petitioner’s Objections to the Report and related Exhibits [Dkts. 71, 73]. 22 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has 23 conducted a de novo review of those portions of the Report to which objections have 24 been stated. 25 The Report issued in January 2019, and is 62 pages long. Petitioner twice 26 sought lengthy extensions of time to file his Objections to the Report on the ground 27 that he needed additional library time to prepare them, and his extension requests 28 were granted. In May 2019, Petitioner submitted Objections that were 158 pages in Dockets.Justia.com 1 length (and a related stack of exhibits), which had not been served on Respondent. 2 The Magistrate Judge rejected them, again extended Petitioner’s deadline, and 3 directed him to file Objections that “shall not exceed 50 pages.” [Dkt. 70.] In 4 disregard, Petitioner filed Objections that are 65 pages, again with a hefty stack of 5 exhibits. The Magistrate Judge allowed the overlength Objections to be filed so that 6 consideration of the Report, and the resolution of this case, could move forward. 7 A central theme running throughout the Objections is Petitioner’s objection to 8 the Magistrate Judge’s imposition of the above-noted page limit. Petitioner asserts 9 that this has placed an “undue burden” on him and contends that, as a result, he is 10 unable to discuss numerous portions of the Report, i.e., purportedly because the 11 imposed page limit has kept him from doing so. Petitioner’s complaint rings 12 hollow. 13 The Court has reviewed the Objections carefully and note they suffer from 14 numerous instances in which Petitioner devotes page after page of discussion to 15 irrelevant or unnecessary matters. For example, even though Petitioner does not 16 dispute the Report’s description of his prior state proceedings, Petitioner spends two 17 pages discussing this very same matter – a non-issue. At pages 4-11 of the 18 Objections, Petitioner expounds at length about the AEDPA standard of review – a 19 matter about which the Court does not need instruction – and includes a discussion 20 about second or successive federal habeas petitions – a topic that has no relevance to 21 this case, as the Petition is not second or successive and there has never been any 22 claim or issue in this case that it is. At the outset of each of the portions of the 23 Objections in which Petitioner actually addresses the Report’s analysis of his claims 24 (as opposed to repeatedly complaining that he lacks adequate space to do so), he 25 repeats verbatim portions of the Report’s text, a wholly unnecessary repetition and 26 page-waster. That Petitioner has wasted a substantial percentage of the 50 pages 27 allotted to the Objections on discussions that are unnecessary rather than on 28 addressing the actual substance of the Report was his choice, but does not give rise 2 1 to any basis to question the Report. In any event, the Court finds that the 50 page 2 limitation imposed was a reasonable one, particularly in light of Petitioner’s history 3 of prolix filings and the related burdens imposed as a result of their undue length. 1 4 In reviewing the Objections, the Court has observed that they are replete with 5 instances in which Petitioner misstates or misconstrues the substance of the Report 6 and the Magistrate Judge’s findings, analysis, and conclusions and/or takes issue 7 with purported findings to the Magistrate Judge that, in fact, were not made. The 8 substance of the Report speaks for itself; the Court will not engage in reciting the 9 litany of instances in which the Objections misdescribe it. Rather, the Court will 10 address specifically only the following Objections: 11 In connection with Grounds Four through Six of the Petition, the Report 12 concluded succinctly that the claims are barred by the doctrine of Stone v. Powell, 13 428 U.S. 465 (1975), and thus, did not address the merits of these claims. Petitioner 14 argues that: the Magistrate Judge erred in finding the Stone bar applicable, because 15 he allegedly is entitled to a retroactive application of Riley v. California, 573 U.S. 16 373 (2014); and under Magwood v. Patterson, 561 U.S. 320 (2010), the Petition is 17 not second or successive. As to the latter contention, again, there has never been a 18 second or successive petition argument made or issue raised in this case, and the 19 Magwood-based Objection is not only perplexing but of no moment. As to 20 Petitioner’s invocation of Riley, he ignores that the Court already has rejected his 21 Riley argument. In particular, the Court has specifically advised Petitioner that Riley 22 has no relevance here and, moreover, does not have a retroactive application to his 23 claims even if it were substantively relevant. [See Dkts. 19 and 25.] After making 24 his meritless Riley and Magwood argument, Petitioner then spends pages 19 pages 25 of the Objections arguing the purported merits of Grounds Four through Six. The 26 27 1 28 The Petition’s text is 190 pages long. Petitioner’s Reply text is 120 pages long. 3 1 Court will not address that discussion,2 because it is irrelevant given the Report’s 2 correct finding that the claims are barred by Stone v. Powell. With respect to his asserted claim under California v. Trombetta, 467 U.S. 3 4 479 (1984), Petitioner devotes five pages arguing the asserted exculpatory nature of 5 the purportedly destroyed evidence (pills) and the alleged bad faith of the State in 6 destroying such evidence, yet ignores the simple fact that, as the Report clearly 7 points out (at 23 n.11), the record shows that the pills, in fact, had not been 8 destroyed and were available to the defense had a request for examination been 9 made. This Trombetta-related Objection is meritless. Finally, Petitioner raises several new instructional error claims, as well as a 10 11 related new ineffective assistance of counsel claim, in the Objections (at 49-54, 55- 12 57). These claims were not included within the 16 habeas claims alleged in the 13 Petition, which are addressed in the Report. 3 14 A district court has discretion, but is not required, to consider evidence or 15 arguments presented for the first time in objections to a report and recommendation. 16 See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 17 231 F.3d 615, 621-22 (9th Cir. 2000). The Court exercises its discretion to reject 18 consideration of these belatedly-raised claims and their underlying arguments, as it 19 is inappropriate to raise new habeas claims for the first time in objections to a report 20 and recommendation or in a traverse. See Greenhow v. Secretary of Health & 21 22 23 24 25 26 27 28 2 This discussion is a prime example of Petitioner’s improper assertion that the Magistrate Judge purportedly made certain erroneous findings that, in fact, are nowhere to be found in the Report, as well as his misuse of the pages allotted to the Objections. While the Objections assert (at 18, 24, 27, and 31) that the Report made specific findings and drew specific conclusions regarding the substantive merits of Grounds Four through Six, the Report plainly never addressed those merits, having found the claims to be barred by Stone. 3 One of the new instructional error claims was noted briefly in Petitioner’s Reply. A new habeas claim, however, may not be proffered for the first time in a traverse or reply. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (a claim raised for the first time in a traverse may be disregarded). 4 1 Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“allowing parties to litigate 2 fully their case before the magistrate and, if unsuccessful, to change their strategy 3 and present a different theory to the district court would frustrate the purpose of the 4 Magistrate Act”), overruled on other grounds by United States v. Hardesty, 977 5 F.2d 1347, 1348 (9th Cir. 1992) (en banc); see also Rule 2(c)(1) of the Rules 6 Governing Section 2254 Cases in the United States District Courts (the petition 7 “must” “specify all grounds for relief available to the petitioner”). 8 9 Finally, the Court rejects Petitioner’s objection that he is entitled to have an evidentiary hearing held regarding Grounds Three, Eight, and Nine. The Report 10 correctly concluded that, under the standards that guide this Court’s federal habeas 11 review, an evidentiary hearing was neither warranted nor needed. 12 Nothing else in the Objections gives the Court pause or concern or need be 13 addressed. Having completed its review, the Court accepts the findings and 14 recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) 15 the Petition is DENIED; and (2) Judgment shall be entered dismissing this action 16 with prejudice. 17 18 19 20 DATED: July 29, 2019 Honorable Dale S. Fischer UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 5
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