Deshon Aaron Atkins v. W. L. Montgomery

• Court: District Court, C.D. California
• Decided: August 26, 2020
• Docket: 2:18-cv-06877
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DESHON AARON ATKINS, Case No. 2:18-cv-06877-DOC-MAA 12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 14 W.L. MONTGOMERY, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation of the United States 19 Magistrate Judge. 20 The Court also has reviewed Petitioner’s objections to the Report and 21 Recommendation, which the Court received and filed on June 29, 2020 22 (“Objections”). (Objs., ECF No. 26.) As required by Federal Rule of Civil 23 Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 24 Report and Recommendation to which Petitioner specifically has objected. 25 First, Petitioner argues that the Magistrate Judge overlooked his challenge to 26 the state court’s factual summary of the conviction. (Objs., at 2.) The Court of 27 Appeal’s factual summary, which was adopted by the Magistrate Judge, 28 1 summarized the evidence presented at trial. (See Report and Recommendation, 2 ECF No. 25, at 4–5 (quoting Lodgment (“LD”) 4, ECF No. 10-4, at 3–5).) 3 Although Petitioner argues that Beasley was not present at the scene of the crime 4 and that he presented this argument to the state courts, Petitioner has not challenged 5 any specific portion of the Court of Appeal’s factual summary. (See Objs., at 2; see 6 also Petition, ECF No. 1.) Thus, he has not shown by clear and convincing 7 evidence that any of the information contained in the Court of Appeal’s factual 8 summary is incorrect. See 28 U.S.C. § 2254(e)(1); Hedlund v. Ryan, 854 F.3d 557, 9 563 (9th Cir. 2017). 10 Second, Petitioner argues that his insufficient evidence claim has merit 11 because attempted murder requires the specific intent to kill, “[i]t’s impossible to 12 have intentions to kill someone who is not present at the scene of the crime,” and 13 the evidence presented at trial did not prove that Beasley was present at the scene of 14 the shooting. (Objs., at 3.) This argument lacks merit for the reasons stated in the 15 Report and Recommendation. (Report and Recommendation, at 20–22.) 16 Third, Petitioner argues that the Court of Appeal and Magistrate Judge 17 improperly assumed that any inconsistencies in the trial court’s evidentiary rulings 18 were harmless, and that an evidentiary hearing is warranted on this issue. (Objs., at 19 3–5.) This argument also fails for the reasons discussed in the Report and 20 Recommendation. (Report and Recommendation, at 20–21.) 21 Fourth, Petitioner asserts that the prosecutor “presented unsubstantiated 22 evidence of Beasley to the jury as facts, causing confusion and persuading the jury 23 to a finding of guilt.” (Objs., at 5.) Petitioner refers to the following statement: “I 24 have an officer that will testify he went to the hospital, saw the injury to Mark 25 Beasley on the same date and time.” (Id. (quoting 6 RT 1825)). However, the 26 prosecutor made this statement outside of the jury’s presence, during a sidebar 27 discussion between the trial court judge, the prosecutor, and defense counsel. (See 28 1 || 6 RT 1824 (noting that the proceedings occurred in the hallway outside the 2 || presence of the jury)). Thus, Petitioner’s argument that this statement caused the 3 || jury confusion and led to the guilty verdict lacks merit. 4 In sum, the Court finds no defect of law, fact, or logic in the Report and 5 || Recommendation. The Court concurs with and accepts the findings, conclusions, 6 || and recommendations of the United States Magistrate Judge, and overrules the 7 || Objections. 8 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 9 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 10 || Petition and dismissing this action with prejudice. 11 . August 26, 2020 DATED: Kowil 2 Cw UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28