Opinion
No. CV-05-0398-CI.
July 13, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
Magistrate Judge Imbrogno filed a Report and Recommendation on May 22, 2006, recommending Plaintiff's claims for habeas relief be dismissed with prejudice. (Ct. Rec. 18.) On June 1, 2006, Petitioner timely filed objections to the Report and Recommendation. (Ct. Rec. 19.)
Petitioner contends the factual record does not support Magistrate Judge Imbrogno's statement that the evidence presented was "equivocal" and had no effect on the jury's deliberations. (Ct. Rec. 19 at 2.) Although there were inconsistent reports of whether information concerning Petitioner's prior trial and conviction was actually discussed during deliberations, all of the jurors denied that the disallowed information affected their respective decisions.
Petitioner's argument relies primarily on juror Hancock's interview statement that the information was brought up during deliberations. (Ct. Rec. 19 at 3.) However, Ms. Hancock denied the unauthorized information had any impact on her decision-making. (Ct. Rec. 18 at 20.) Taken as a whole, the jurors' interviews do not indicate more than a vague recollection of information about Petitioner's prior conviction from the newspaper or Mr. Hatfield's testimony. Petitioner has not made an initial showing that the extrajudicial information influenced the verdict; thus, a presumption of prejudice is not triggered. Caliendo v. Warden of California Men's Colony, 365 F.3d 691, 696 (9th Cir.), cert. denied 543 U.S. 927 (2004), citing United States v. Day, 830 F.2d 1099, 1103-04 (10th Cir. 1987) (stating that "[a] defendant must offer sufficient evidence to trigger the presumption of prejudice"). Further, defense counsel opted for a curative jury instruction regarding witness Hatfield's blurted statement, rather than a mistrial. The instruction eliminated any prejudicial effect of the contested testimony. Petitioner has demonstrated only de minimus unauthorized communication, which did not create prejudice or violate his constitutional right to a fair trial.
Petitioner also contends the Report and Recommendation errs in recommending adoption of the state court's findings that introduction of Exhibit 28 was a "legitimate strategy" by trial counsel. As stated in the Report and Recommendation, "the more appropriate question is whether the failure to redact the Exhibit, intentionally or through inadvertent oversight by defense counsel, constituted ineffective assistance." (Ct. Rec. 18 at 27.) The Report and Recommendation assumes, for the sake of argument, that ORDER ADOPTING REPORT AND RECOMMENDATION — 2 counsel's failure to redact violated the standard of care; however, dismissal was recommended because Petitioner did not present "clear and convincing" evidence to rebut the state court's finding that there was no prejudice, because no juror testified that the restitution reference was considered in his/her decision to convict. (Ct. Rec. 18 at 27-28.) In his objection, Petitioner relied on his opening petition and added nothing to show the prejudice prong of the Strickland v. Washington, 466 U.S. 668 (1984), test was met. The state court's finding was not rebutted by Petitioner's objection. See 28 U.S.C. § 2254 (e)(1).
Having reviewed the May 22, 2006, Report and Recommendation (Ct. Rec. 18) and Petitioner's objections (Ct. Rec. 19), the court ADOPTS the Report and Recommendation in its entirety. Petitioner's Writ of Habeas Corpus is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide a copy to counsel.