Opinion
Case No. CV 16-2078-DMG (GJS)
05-29-2018
NATHANIEL ALBERT GREENWOOD, Petitioner v. JEFF MACOMBER, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition ("Petition") and all pleadings, motions, and other documents filed in this action, the Report and Recommendation of United States Magistrate Judge ("Report"), and Petitioner's Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of the Report to which objections have been stated.
Petitioner asserts that the Report is erroneous with respect to Ground One of the Petition, because the Magistrate Judge did not understand that he had been charged with, and convicted of, attempted willful, deliberate and premeditated murder and, instead, mistakenly believed he had been convicted of "simple" attempted murder. This contention is rejected, because it is factually frivolous. (See Report at 2, 7-9.) To the extent that Petitioner is attempting to raise a new claim in his Objections - to wit, that the evidence was insufficient to convict him of attempted willful, deliberate and premeditated murder - his attempt fails. Contrary to Petitioner's assertion, no such sufficiency of the evidence claim was alleged in the Petition or state high court habeas petition as an extant habeas claim. In any event, the Court declines to consider a new and unexhausted sufficiency of the evidence claim asserted belatedly in the objections to a report and recommendation.
With respect to Ground Two, Petitioner urges the Court to follow an asserted state law standard of review for ineffective assistance of appellate counsel claims that he contends is constitutionally stricter as to counsel's obligations on appeal than that which applies to federal habeas claims governed by 28 U.S.C. § 2254(d), i.e., which allegedly requires appellate counsel to raise unmeritorious claims on appeal. Whether or not Petitioner's characterization of the state law standard is correct, the Court here is bound to apply clearly established federal constitutional standards in considering the objective reasonableness of the state court's decision.
Having completed its review, the Court concludes that nothing set forth in the Objections affects or alters, or calls into question, the analysis and conclusions set forth in the Report. The Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: May 29, 2018
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE