Opinion
NO. CV 13-1465-AB (AS)
03-03-2015
ASHLEY JOHNIGAN, Petitioner, v. KIMBERLY HUGHES, Acting Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which no objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
The Petition challenges the sufficiency of the evidence to support a finding of implied malice, an element of the second degree murder charge, and trial counsel's alleged ineffectiveness in advising Petitioner to reject a plea bargain involving a nine- year sentence. The Magistrate Judge recommended that the Petition be denied and dismissed with prejudice because the California Supreme Court's rejection of these claims was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. (Docket No. 28). With respect to Petitioner's ineffective assistance of counsel claim, the California Supreme Court noted that petitioner had provided no evidence to support her claim. Id.
The Court has carefully considered Petitioner's objections and her submission, for the first time in the record, of declarations from her mother and her husband in support of her claim of ineffective assistance of counsel. A district court has discretion to consider evidence presented for the first time in a party's objection to the Magistrate Judge's Report. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000); see also Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). The Court finds the declarations to be nothing more than after-the-fact self serving statements that are not supported by the record and insufficient to support Petitioner's allegations. As set forth in the Report, which the Court has adopted, a Petitioner's own self-serving statements are insufficient to establish her allegations. See Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (rejecting ineffective assistance of counsel claim when "[o]ther than Womack's own self-serving statement, there is no evidence" to support the claim).
Accordingly, Petitioner's Objections are overruled and this Court adopts the Report and Recommendation of the Magistrate Judge.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 3, 2015
/s/_________
ANDRE BIROTTE JR.
UNITED STATES DISTRICT JUDGE