Hammond v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD GIDEON HAMMOND, Case No. 20-cv-0261-BAS-DEB 12 Petitioner, ORDER: 13 v. (1) OVERRULING PETITIONER’S OBJECTIONS (ECF No. 22); 14 JOSIE GASTELO, et al., (2) ADOPTING REPORT AND 15 Respondents. RECOMMENDATION IN ITS ENTIRETY (ECF No. 21); 16 (3) DENYING PETITION OF WRIT OF HABEAS CORPUS; 17 AND 18 (4) DECLINING TO ISSUE A CERTIFICATE OF 19 APPEALABILITY 20 21 22 23 24 Petitioner Richard Gideon Hammond is a state prisoner proceeding pro se. He filed 25 a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his February 21, 26 2018 conviction and sentence in San Diego Superior Court Case No. SCS280604 27 that resulted in a sentence of six years in prison. (ECF No. 1.) On October 5, 2020, United 28 States Magistrate Judge Daniel E. Butcher issued a Report and Recommendation (“R&R”) 1 recommending that this Court deny Petitioner’s petition of writ of habeas corpus. (ECF 2 No. 21.) Petitioner objected to the R&R. (“Objections,” ECF No. 22.) For the following 3 reasons, the Court (1) OVERRULES Petitioner’s Objections; (2) APPROVES and 4 ADOPTS the R&R; (3) DENIES Petitioner’s petition of writ of habeas corpus; and 5 (4) DECLINES to issue a certificate of appealability. 6 I. BACKGROUND 7 A. Petition 8 Petitioner is a state prisoner who was incarcerated in California Men’s Colony State 9 Prison–West and is now released on parole. (Pet. 1, ECF No. 1; Notice of Change of 10 Address, ECF No. 6. ) He was convicted for vehicular manslaughter with gross negligence 11 in 2018 and was sentenced to six years in prison. (ECF No. 5-8 at 72.) Petitioner 12 challenges his conviction on the grounds that that the Superior Court erred (1) by denying 13 his motion to suppress his blood draw results, which Petitioner argues was obtained in 14 violation of the Fourth Amendment, and (2) by considering irrelevant aggravating factors 15 to impose an upper sentencing term. 16 B. Report and Recommendation 17 On October 5, 2020, Judge Butcher issued an R&R on Petitioner’s petition of writ 18 of habeas corpus. (R&R, ECF No. 21.) In the R&R, Judge Butcher held that Petitioner’s 19 Fourth Amendment claim was barred under the rule set forth in Stone v. Powell, 428 U.S. 20 465 (1976) because Petitioner had the opportunity to move for a suppression of the blood 21 draw evidence in state court. (Id. at 6:19–7:21.) Magistrate Judge Butcher also rejected 22 Petitioner’s claim challenging the Superior Court’s sentencing decision, holding that the 23 claim involved only the interpretation or application of state law and did not present a 24 cognizable claim for federal habeas review. (Id. at 8:26–9:12.) Judge Butcher also found 25 that the state court did not violate Petitioner’s due process in making the sentencing 26 decision. (Id. at 9:13–10:25.) 27 // 28 // 1 II. LEGAL STANDARD 2 The Court reviews de novo those portions of the R&R to which objections are made. 3 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 4 findings or recommendations made by the magistrate judge.” Id. But “[t]he statute [28 5 U.S.C. § 636(b)(1)(c)] makes it clear that the district judge must review the magistrate 6 judge’s findings and recommendations de novo if objection is made, but not otherwise.” 7 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also 8 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where 9 no objections were filed, the district court had no obligation to review the magistrate 10 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 11 de novo, findings and recommendations that the parties themselves accept as correct.” 12 Reyna-Tapia, 328 F.3d at 1121. This rule of law is well-established in the Ninth Circuit 13 and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of 14 course, de novo review of a R & R is only required when an objection is made to the 15 R & R.”); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) 16 (adopting report in its entirety without review because neither party filed objections to the 17 report despite the opportunity to do so). 18 III. ANALYSIS 19 Petitioner raises several objections to the rejection of his Fourth Amendment claim. 20 He repeats the argument that he lacked capacity at the time the State drew his blood and 21 thus the trial court erred by denying his motion to suppress the evidence under the Fourth 22 Amendment, which was already raised in his Petition. As explained in Magistrate Judge 23 Butcher’s well-reasoned R&R, “a state prisoner may not be granted federal habeas corpus 24 relief on the ground that evidence obtained in an unconstitutional search or seizure was 25 introduced at his trial” where “the State has provided an opportunity for full and fair 26 litigation of a Fourth Amendment claim.” Stone, 428 U.S. at 494. California Penal Code 27 § 1538.5 provides for a “full and fair litigation” of Fourth Amendment claims. See Gordon 28 v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). Here, Petitioner does not argue that he did 1 || not have the full and fair opportunity to litigate his Fourth Amendment claim in state court. 2 || Because Petitioner has not shown he was deprived of the opportunity to litigate his Fourth 3 || Amendment claim in state court, the Court declines to grant habeas corpus relief on his 4 || Fourth Amendment claim. 5 Petitioner also objects to Magistrate Judge Butcher’s finding that Petitioner’s 6 || sentencing claim did not present a cognizable claim for federal habeas review. That claim 7 ||lacks merit for the reasons stated in the R&R. To the extent that Petitioner’s sentencing 8 ||claim presented any due process issues, Magistrate Judge Butcher reached the merits of 9 || that issue and found that the state courts’ sentencing decisions comported with due process. 10 Petitioner’s Objections present no grounds for relief. 11 CONCLUSION 12 The Court OVERRULES Petitioner’s Objections (ECF No. 22); APPROVES and 13 || ADOPTS the R&R (ECF No. 21); and DENIES Petitioner’s petition of writ of habeas 14 || corpus (ECF No. 1). 15 In addition, a certificate of appealability may issue only if the applicant makes a 16 ||substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 17 || Petitioner has made no such showing. Because reasonable jurists could not debate whether 18 || “the petition should have been resolved in a different manner or that the issues presented 19 || were ‘adequate to deserve encouragement to proceed further,’” the Court DECLINES to 20 |/issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) 21 || (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). 22 IT IS SO ORDERED. 23 A 24 || DATED: November 10, 2020 ( itl A (Liphan 6 25 United States District Judge 26 27 28 _A-