Tyrone Tittle v. W. L. Montgomery

• Court: District Court, C.D. California
• Decided: June 2, 2020
• Docket: 2:16-cv-07804
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TYRONE TITTLE, ) Case No. CV 16-7804-AB (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) RAYBON JOHNSON, Warden, ) 14 ) Respondent. ) 15 ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 dismissing this action with prejudice. See 28 U.S.C. 21 § 636(b)(1). On April 27, 2020, Petitioner filed Objections to 22 the R. & R., in which he mostly simply repeats arguments from his 23 Petition and Traverse. 24 For instance, Petitioner continues to argue that the trial 25 court “did not evaluate the persuasiveness or genuine nature of 26 the prosecutor’s reasons for peremptorily dismissing” three black 27 prospective jurors, the third step of the Batson v. Kentucky, 476 28 U.S. 79 (1986), inquiry. (Objs. at 3; see id. at 2-4.) But he 1 1 is wrong that the Magistrate Judge determined that the trial 2 court fulfilled its obligations at step three. (See id. at 3-4.) 3 Rather, she correctly found that the trial court did not appear 4 to reach step three for two of the three challenged jurors. (See 5 R. & R. at 25-26.) As to those jurors, she rightly recognized 6 that she had to conduct a de novo review of the record to 7 determine whether the prosecutor’s race-neutral reasons for 8 striking them were pretextual. (See id. at 26 (citing Green v. 9 LaMarque, 532 F.3d 1028, 1031 (9th Cir. 2008) (as amended)).) 10 That review, which revealed that no nonblack prospective juror 11 who shared concerns similar to the stricken jurors was accepted 12 by the prosecutor (see id. at 26), coupled with the prosecutor’s 13 plainly legitimate concerns about the jurors’ impartiality, 14 established that his use of peremptory strikes was not 15 discriminatory. As for the third juror, the Magistrate Judge 16 correctly found that the trial court adequately considered 17 whether the prosecutor’s race-neutral reasons for striking him 18 were genuine when it performed a comparative-juror analysis, and 19 she conducted her own independent review of the record before 20 concluding that the trial court’s finding that they were was 21 sound. (See id. at 25-27.) 22 Petitioner also maintains that he was entitled to an 23 instruction on grossly negligent discharge of a firearm, a lesser 24 included offense of shooting at an inhabited dwelling. (Objs. at 25 7.) For the reasons provided by the Magistrate Judge (see R. & 26 R. at 36-38), the court of appeal was not objectively 27 unreasonable in concluding that the record did not contain 28 substantial evidence from which a jury could infer that 2 1 Petitioner “committed the crime of grossly negligent discharge of 2 a firearm but did not commit the crime of shooting at an 3 inhabited dwelling.” (Lodged Doc. 9 at 9.) 4 As to the Magistrate Judge’s finding that Petitioner was not 5 entitled to habeas relief on his ineffective-assistance-of- 6 counsel claim, he is wrong that the R. & R. did not address his 7 subclaim that trial counsel failed to “test [the] competence of 8 prosecution witnesses.” (Objs. at 11.) Specifically, the 9 Magistrate Judge noted, among other things, that he had not 10 identified any lapses in counsel’s cross-examination of those 11 witnesses or explained what a more rigorous “test[ing]” of their 12 “competence” would have revealed. (R. & R. at 51 n.20.) The 13 Magistrate Judge also correctly found that counsel’s failure to 14 call the witnesses Petitioner claims he should have was not 15 prejudicial. (See id. at 48-51.) Contrary to Petitioner’s 16 objection, she did not reach that conclusion based on a finding 17 that the witnesses’ testimony would have been irrelevant. (See 18 Objs. at 11.) Rather, she based her sound conclusion on the 19 likely inadmissibility or cumulative or inculpatory nature of 20 much of the proposed testimony and the biases undermining the 21 credibility of several witnesses. (See R. & R. at 48-51.)1 22 Having reviewed de novo those portions of the R. & R. to 23 which Petitioner objects,2 the Court agrees with and accepts the 24 1 Petitioner urges the Court to liberally construe his 25 pleadings on account of his pro se status. (Objs. at 10.) But his 26 burden to establish entitlement to federal habeas relief is not lessened by his pro se status. 27 2 Petitioner concedes that his sentencing claim is “moot.” 28 (Objs. at 12.) 3 1 | findings and recommendations of the Magistrate Judge. IT 2 || THEREFORE IS ORDERED that judgment be entered denying the 3 || Petition and dismissing this action with prejudice. (ib C— 5 || DATED: June 2, 2020 ANDRE BIROTTE JR. 6 U.S. DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28