Gary Michael Gallion v. C. Pfeiffer, No. 5:2016cv01992 - Document 28 (C.D. Cal. 2018)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Ronald S.W. Lew for Report and Recommendation (Issued), 21 . Having made a de novo review of all portions of the R. & R. to which Petitioner objected, the Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that the Petition is denied and Judgment be entered dismissing this action with prejudice. (See Order for further details) (bem)

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Gary Michael Gallion v. C. Pfeiffer Doc. 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 GARY MICHAEL GALLION, 10 Petitioner, 11 v. 12 MICHAEL SEXTON, Warden,1 13 Respondent. 14 15 ) Case No. EDCV 16-1992-RSWL (JPR) ) ) ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S. ) MAGISTRATE JUDGE ) ) ) ) Pursuant to 28 U.S.C. § 636, the Court has reviewed the 16 Petition, records on file, and Report and Recommendation of U.S. 17 Magistrate Judge. On December 29, 2017, Petitioner filed 18 objections to the R. & R., in which he mostly simply repeats 19 arguments from his Petition and Traverse. A few of his 20 contentions warrant brief discussion, however. 21 The Magistrate Judge did not “misconstrue” Petitioner’s 22 void-for-vagueness argument (see Objs. at 2); she discussed at 23 length why the Supreme Court’s decision in Kolender v. Lawson, 24 461 U.S. 352, 357 (1983), could not provide Petitioner any relief 25 (see R. & R. at 17-21), and she explained that a federal habeas 26 27 28 1 Michael Sexton, warden of the California State Prison at Corcoran, where Petitioner is housed (see Notice of Change of Address at 1), is substituted in under Federal Rule of Civil Procedure 25(d) as the sole respondent. See R. 2, Rs. Governing § 2254 Cases in U.S. Dist. Cts. Dockets.Justia.com 1 court is bound by a state court’s interpretation of its own law 2 (see id. at 17), and thus his Andreasen2 argument must fail 3 (see Objs. at 3-4). 4 Petitioner continues not to explain how he was prejudiced by 5 any ineffective assistance of counsel: for instance, he still 6 does not name the witnesses his counsel allegedly should have 7 called (see Objs. at 5-6) despite the Magistrate Judge’s noting 8 that that failure was fatal to his claim (see R. & R. at 25). 9 And he does not offer any evidence — or, more importantly, point 10 to any such evidence already in the record — demonstrating that 11 any member of the jury was exposed to potentially inflammatory 12 trial coverage in the media. 13 (See Objs. at 7-8.) Having made a de novo review of all portions of the R. & R. 14 to which Petitioner objected, the Court accepts the findings and 15 recommendations of the Magistrate Judge. 16 IT THEREFORE IS ORDERED that the Petition is denied and 17 Judgment be entered dismissing this action with prejudice. 18 19 DATED: 1/24/2018 20 s/ RONALD S.W. LEW RONALD S.W. LEW U.S. DISTRICT JUDGE 21 22 23 24 25 26 27 28 2 People v. Andreasen, 214 Cal. App. 4th 70, 79 (Ct. App. 2013). 2

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