Thompson v. Woodford, Civil No. 06CV1758 JAH (NLS).

Decision Date17 August 2007
Docket NumberCivil No. 06CV1758 JAH (NLS).
CourtU.S. District Court — Southern District of California
PartiesTravis Ray THOMPSON, Petitioner, v. Jeanne WOODFORD, Respondent.

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619 F.Supp.2d 1028
Travis Ray THOMPSON, Petitioner,
Jeanne WOODFORD, Respondent.
Civil No. 06CV1758 JAH (NLS).
United States District Court, S.D. California.
August 17, 2007.

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Gerson Simon, Law Offices Gerson Simon, San Marino, CA, for Petitioner.

Attorney General, State of California, Office of the Attorney General, San Diego, CA, for Respondents.


JOHN A. HOUSTON, District Judge.


Petitioner Travis Ray Thompson ("Petitioner") a prisoner appearing pro se, has filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2. The Honorable Nita L. Stormes, United States

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Magistrate Judge, submitted a Report and Recommendation ("Report") on March 21, 2007, recommending that the instant Petition be denied in its entirety. Petitioner filed Objections to the Report on June 7, 2007. Respondent did not file a Reply to Petitioner's Objections. Having fully reviewed the matters presented, this Court OVERRULES Petitioner's Objections; ADOPTS the Report, and DENIES the Petition for writ of habeas corpus relief on the merits.


On January 5, 2004, Petitioner was charged with assault with a deadly weapon by means likely to produce great bodily injury, a felony in violation of Cal.Penal Code section 245(A)(1). (Lodgment No. 1, Clerk's Tr. at 7). The information alleged that Petitioner personally used a deadly weapon, a razor and/or shank, in the commission of the offense and had two prior felony convictions. (Id. at 8-9)

Petitioner was found guilty by a jury, which also made a true finding the Petitioner personally used a deadly weapon during the assault on a fellow inmate. On the same day, the trial court found it to be true that Petitioner had two prior serious felony convictions. (Id. at 521). On July 27, 2004, the trial court sentenced Petitioner to an indeterminate term of twenty-five years to life for the assault and a determinate term of five years for the prior serious felony convictions. (Lodgment No. 5, People v. Thompson, No. D044829, slip op., at 18, 2005 WL 1925848 (Cal.Ct.App. August 12, 2005).)

Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One, raising the same claims as he presents before this Court, with the exception of ineffective assistance of counsel. Petitioner also filed a petition for habeas corpus on May 5, 2005. The petition was denied on June 20, 2005 for failing to state a prima facie case. (Lodgments Nos. 6 and 7). Petitioner's conviction was affirmed on August 12, 2005 (Lodgment No. 5). Petitioner's subsequent petition for review to the California Supreme Court was denied on November 16, 2005. (Lodgment No. 9, People v. Thompson, No. S137191, slip op (Cal. Nov 16, 2005.)) A petition for review of the habeas filed on June 12, 2006, was denied on July 26, 2006. (Lodgment No. 15, In Re Thompson, No. S144233, slip op. (Cal. July 26, 2006)).

Petitioner filed the current Petition for Writ of Habeas Corpus on August 28, 2006. (Doc. No. 1). Respondent filed an Answer on October 26, 2006. (Doc. No. 6). Petitioner filed a Traverse on February 27, 2007. (Doc. No. 14). Magistrate Judge Stormes Report recommending the instant Petition be denied in its entirety was filed on March 21, 2007. (Doc. No. 15). Petitioner filed his Objections to Report and Recommendation on June 7, 2007. (Doc. No. 19). No Reply to the Objections was filed.

Petitioner claims his federal constitutional rights were violated on four grounds: (1) ineffective assistance of counsel; (2) revocation by the trial court of his right to self-representation; (3) restriction of his evidence by the trial court; and (4) jury misconduct. (Doc. No. 15 at 11-12).


1. Legal Standard

a. Scope of Review of Magistrate Judge's Report and Recommendation

The District Court's role in reviewing a Magistrate Judge's Report and Recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the District

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Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or part, the findings or recommendation made by the Magistrate Judge [judge]." It is well settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a District Court may adopt those parts of a Magistrate Judge's Report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. An, 474 U.S. 140, 153, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

b. Scope of Review of Federal Habeas Petitions

Federal habeas review is granted only if the state court's denial of relief: (1) resulted in a decision that was either "contrary to," or was an "unreasonable application" of, "clearly established federal law" as set forth by the United States Supreme Court; or (2) was based on an "unreasonable determination" of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254.

2. Analysis

This Court's independent review of the record, the relevant lodgments presented by the parties and the Report (Doc. No. 15) reveals that the Magistrate Judge provided a cogent analysis of each of the four claims presented by Petitioner. After reviewing Petitioner's Objections, this Court finds that Petitioner does not specifically object to the procedural background of the federal or state proceedings (Doc. No. 15 at 1-3); to the lengthy and extensive transcript-supported "Underlying Facts" (Id. at 3-11); or to the standard of review (Id. at 12) utilized by the Magistrate Judge. The Petitioner's objections do not point to specific findings or conclusions in the Report, but instead, appear to be general objections to the Report's analysis and conclusions, making the same arguments previously made to the California Court of Appeal, Fourth Appellate District, Division One, case nos. D046375 (Lodgment 7) (habeas case) and D044829 (Lodgment 5) (assault conviction).

a. Claim One—Ineffective Assistance of Counsel

Petitioner acknowledges that the United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To provide a basis for habeas relief based on the claim of ineffective assistance counsel, the Petitioner must demonstrate two things.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Petitioner claims that his "discriminatory prosecution claim was at the heart" of his defense. (Doc. No. 19 at 4). Petitioner contends that his appellate counsel was ineffective because he did not pursue this defense. (Id.) As the Magistrate Judge noted, Petitioner argues that the correctional officers fostered racial violence at the jail and that the charges against Petitioner

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were politically motivated. (Doc. No. 15 at 13-14). It is Petitioner's belief that Black inmates are prosecuted for incidents such as Petitioner was involved in, however Hispanic gang members are shielded from criminal prosecution for such actions. (Id. at 13). Petitioner claimed that he carried a razor, taped to some trial briefs, to protect himself. When Petitioner saw his cell door open he thought a fellow inmate handcuffed in another cell was going to attack him. Petitioner ran into the inmate's cell and assaulted him with the razor. Petitioner claimed he was acting in self-defense and had no choice but to attack the inmate because the guards were conspiring to have him murdered. (Lodgment No. 16, Reporter's Tr. at 1760-67; Doc No. 15 at 9-10).

Petitioner contends that there were additional issues and examples that his appellate counsel should have presented and the court should have considered. He also contended that the court was biased against Petitioner. However, Petitioner did not allege any facts, provide any evidence to support these allegations or raise these claims in the state supreme court. Further, these claims were not specifically identified in the record.

The California Court of Appeal ("Court of Appeals") found that Petitioner did not make a prima facie showing for relief. Petitioner's allegations were found to be conclusory without explanation and Petitioner was not entitled to relief or an evidentiary hearing (a remedy Petitioner again seeks in his Objections filed with this Court, Doc. No. 19 at 12). (Lodgment No. 7, In re Thompson, slip op. at 1-2) The Court of Appeals found that the only evidence Petitioner provided to support his political provocation claim were newspaper articles and editorials, which are not evidence. "Even if these documents were evidence, they do not support Thompson's claim." Id. at 2. The Magistrate Judge likewise found that Petitioner had not established the requisite prejudice flowing from appellate counsel's failure to present a discriminatory prosecution claim. (Doc. No. 15 at 17-18). The Court of Appeals's rejection of the claim was not an unreasonable application of Strickland. Accordingly this Court adopts the Magistrate Judge's findings and conclusions that Petitioner is not entitled to habeas relief as to his first claim.

b. Claim...

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