Mike Shawron Morgan v. Daniel Paramo, No. 2:2016cv05110 - Document 30 (C.D. Cal. 2017)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S.MAGISTRATE JUDGE by Judge Dolly M. Gee. 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 21 . IT THEREFORE IS ORDERED that Respondent's motion to dismiss 8 is granted, the Petition is denied, and Judgment be entered dismissing this action with prejudice. (See Order for Further Details) (kl)
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Mike Shawron Morgan v. Daniel Paramo Doc. 30 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 MIKE SHAWRON MORGAN, 10 Petitioner, 11 v. 12 DANIEL PARAMO, Warden, 13 Respondent. 14 ) Case No. CV 16-5110-DMG (JPR) ) ) ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S. ) MAGISTRATE JUDGE ) ) ) ) ) 15 16 The Court has reviewed the Petition, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge. 18 U.S.C. § 636. See 28 On May 8, 2017, Petitioner filed objections to the 19 R. & R., which he seems to believe is the work of the Attorney 20 General. (See, e.g., Objs. at 1 (referring to “Attorney 21 General’s Report and Recommendation”).)1 His objections 22 essentially repeat arguments in the Petition. A few of his 23 contentions, however, require a brief discussion. 24 25 Petitioner objects to the Magistrate Judge’s finding that 1 On August 1, 2017, Petitioner filed a document purporting 26 to contain “supplemental objections” to the R. & R. It appears to be a verbatim copy of his earlier set of objections. (See 27 Aug. 1, 2017 Objs. at 9 (stating that he is “enclosing a copy” of 28 his May 8 Objections “to assure clarity of claims and that all time constraints are met”).) 1 Dockets.Justia.com 1 the Petition is untimely despite his claim of actual innocence. 2 (See id. at 4-5.) The chief evidence he cites to show his 3 alleged innocence is the declaration of Wandisa Cowart-Morgan. 4 (Id.) But as the Magistrate Judge pointed out (R. & R. at 18- 5 21), Cowart-Morgan’s several inconsistent and unsigned 6 declarations dating from years after the events they describe are 7 not credible. 8 Petitioner also raises objections concerning the admission 9 of Kenneth Naranjo’s testimony and the loss of “exculpatory 10 evidence” consisting of clothing allegedly belonging to him that 11 was discarded near the crime scene. (Objs. at 3.) To the extent 12 those contentions are intended as additional support for his 13 actual-innocence claim, they are based on facts known to him at 14 the time of trial and therefore do not affect the application of 15 the AEDPA statute of limitations. Further, they were not raised 16 in the Petition as part of his actual-innocence claim. 17 accordingly declines to consider them for that purpose. The Court See 18 Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (court must 19 exercise discretion in refusing to consider new arguments raised 20 in objections to magistrate judge’s report and recommendation). 21 Petitioner also objects to portions of the Magistrate 22 Judge’s adoption of the factual summary from the California Court 23 of Appeal. (Objs. at 1-4.) As the Magistrate Judge pointed out 24 (see R. & R. at 4), the factual summary in a state appellate25 court opinion is entitled to a presumption of correctness under 26 28 U.S.C. § 2254(e)(1), see Crittenden v. Chappell, 804 F.3d 998, 27 1010-11 (9th Cir. 2015). That presumption may be rebutted by 28 clear and convincing evidence. Id. 2 Petitioner has not made that 1 showing, and even if he had there is nothing to suggest that it 2 would affect the application of the one-year statute of 3 limitations to his case. For example, Petitioner objects to the 4 court of appeal’s statement that victim John Cho saw a gun in 5 Petitioner’s waistband because it was actually victim Shinho Cho 6 who did, he says. (Objs. at 2.) He does not explain how or why 7 that “fact” makes any difference, however. 8 Finally, Petitioner attempts to bring a claim that the 9 length of his sentence amounts to unconstitutional cruel and 10 unusual punishment. 11 in the Petition. (See id. at 7.) That claim appears nowhere Even if the Court had discretion to consider 12 habeas claims, as opposed to arguments, raised for the first time 13 in objections to an R. & R., see Akhtar, 698 F.3d at 1208; but 14 see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) 15 (court need not consider habeas claims raised for first time in 16 traverse), Petitioner’s new claim has not been exhausted in state 17 court and is likely time-barred and therefore not appropriate for 18 review, see Marquez-Ortiz v. Sullivan, No. SACV 08-552 ABC (FFM), 19 2012 WL 294741, at *1 (C.D. Cal. Feb. 1, 2012) (declining to 20 consider habeas petitioner’s additional claims raised for first 21 time in objections to report and recommendation in part because 22 they were not exhausted in state court). 23 Having reviewed de novo those portions of the R. & R. to 24 which objections were filed, the Court accepts the findings and 25 recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED 26 that Respondent’s motion to dismiss is granted, the Petition is 27 28 3 1 denied, and Judgment be entered dismissing this action with 2 prejudice. 3 4 DATED: December 28 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ________________________________ DOLLY M. GEE UNITED STATES DISTRICT JUDGE
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