Opinion
ORDER ADOPTING AND MODIFYING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DALE S. FISCHER, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Magistrate Judge's Report and Recommendation, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings and conclusions of the Magistrate Judge. However, the Court modifies the Report as discussed below.
At page 2, line 19, the Court deletes the sentence that begins with the phrase, "On February 28..." Instead, the following sentences should be added to the end of the paragraph:
On November 18, 2004, Petitioner waived his right to a jury trial on the prior conviction allegations and admitted that he had two prior strike convictions. (4 RT 4210-13). The trial court also determined that Petitioner had a third prior strike conviction. (4 RT 4213). On February 28, 2005, the trial court imposed an indeterminate term of seventy-five years to life in state prison. (2 CT 464). The trial court imposed consecutive sentences of twenty-five years to life on Counts 1 and 2, plus an additional ten years on both counts because of the firearm enhancements, and a five-year prior prison term enhancement on Count 1. (4 RT 4522-24).
At page 48, line 4, the Court deletes the sentence that begins with the phrase, "In contrast to..." Instead, the sentence should read as follows:
In contrast to Detective Park's testimony on the record, prosecutorial vouching occurs when a prosecutor refers to matters outside the record during argument.
Accordingly, IT IS ORDERED THAT:
1. The Petition is DENIED and Judgment shall be entered dismissing this action with prejudice.
2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on counsel for Petitioner and on counsel for Respondent.