Opinion
No. 2:03-cv-00023-JKS-EFB.
January 9, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On January 23, 2007, after appointing counsel to represent Petitioner, the Magistrate Judge held an evidentiary hearing to resolve the conflicting testimony between petitioner and his former attorneys as to the allegation that his former attorneys failed to inform and advise him as to two plea bargain offers. Petitioner, his former attorneys, Peter Vlautin and Sandra Martin, and the prosecutor, Alice Wong, all appeared and testified at the hearing. On February 23, 2007, the Magistrate Judge filed Findings and Recommendations herein which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty days. Petitioner has filed objections to the Findings and Recommendations.
Petitioner was not accorded an evidentiary hearing in the state court proceedings.
Petitioner's has raised nine objections to the Findings and Recommendations; more specifically that the findings do not recognize the lack of specific recollection in January 2007 by Peter Vlautin and Sandra Martin of the events that occurred in February and March 1997; instead, relying upon past recollection recorded, i.e., the notes in the Public Defender's files. These objections may be appropriately termed as essentially objections to the credibility determination made by the Magistrate Judge. In a thorough and well-reasoned analysis of the testimony and exhibits the Magistrate Judge specifically found that the testimony of Petitioner was not credible and that of Mr. Vlautin credible on the issue of whether the first plea offer, i.e., the six-year offer, was communicated to and rejected by the Petitioner. Likewise, the Magistrate Judge specifically found that the testimony of Petitioner was not credible and that of Ms. Martin credible on the issue of whether the second plea offer, i.e., the 15-year and three-month offer, was communicated to and rejected by Petitioner. After an independent de novo review of the file, including the transcript of the evidentiary hearing, the Court concurs with the Magistrate Judge for the reasons stated in the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED THAT:
1. The Findings and Recommendations filed February 23, 2007, are adopted in full;
2. Petitioner's application for a writ of habeas corpus is DENIED; and
3. The Clerk of the Court to enter final judgment accordingly.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) ("reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further" (internal quotation marks omitted)).