Opinion
Case No. CV 13-5698-RGK (RNB)
02-24-2015
TYREESE L. REED, Petitioner, v. JEFFREY BEARD, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file herein, including the Report and Recommendation of the United States Magistrate Judge, petitioner's objections thereto, and respondent's response to petitioner's objections. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendations of the Magistrate Judge, subject to the following caveat. Petitioner correctly points out in his objections that the Magistrate Judge did not apply the AEDPA standard of review to Ground 6 of the Petition, but rather rejected that ineffective assistance claim under a de novo standard of review. Accordingly, the issue of petitioner's entitlement to an evidentiary hearing with respect to that claim is not constrained by the Supreme Court's holding in Cullen v. Pinholster, - U.S. -, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) that review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." However, it follows from the Magistrate Judge's resolution of Ground 6 by reference to the state court record alone and this Court's acceptance of the Magistrate Judge's findings with respect to Ground 6 that petitioner also is not entitled to an evidentiary hearing on that ineffective assistance claim. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (holding, in a case pre-dating the Supreme Court's reversal of the Ninth Circuit in Pinholster, that "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record").
IT THEREFORE IS ORDERED that: (1) petitioner's request for an evidentiary hearing is denied; and (2) Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: FEB 24 2015
/s/_________
R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE