Opinion
Case No. CV 12-00037 GAF (AN)
02-28-2013
SANG MIN KIM, Petitioner, v. MATTHEW CATE, Secretary CDCR, et al., Respondents.
ORDER ACCEPTING THE FINDINGS
AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the file, including the Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objections [36]. Further, the Court has completed a de novo review of those portions of the R&R to which Petitioner has objected.
Based on its review, the Court finds the Objections reiterate arguments made in the First Amended Petition, and those arguments were correctly rejected in the R&R. Additionally, as to Petitioner's insufficient evidence claims, he has used his Objections to continue his efforts to re-try his case by highlighting evidence ostensibly favorable to the defense and attempting to contradict inferences drawn by the jury. The Court, therefore, reiterates the finding in the R&R that a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781 (1979).
IT IS ORDERED that:
1. The Objections are overruled and the Court accepts the findings and recommendation of the R&R.
2. Judgment shall be entered denying the First Amended Petition and dismissing this action with prejudice.
3. All pending motions are denied as moot and terminated.
IT IS FURTHER ORDERED that the clerk of the Court shall serve a copy of this Order and the Judgment on all counsel or parties of record.
______________________
GARY A. FEESS
UNITED STATES DISTRICT JUDGE