Opinion
No. CV 14-8669-DDP (PLA)
02-09-2016
KERRY L. ROSELL, JR., Petitioner, v. K. HOLLAND, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On July 20, 2015, the United States Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that petitioner's Petition for Writ of Habeas Corpus be denied and the action dismissed with prejudice. On August 31, 2015, petitioner filed objections to the R&R.
The Court has reviewed the objections, and finds that petitioner has generally elaborated on certain arguments raised in the Petition. As the Magistrate Judge has adequately addressed and disposed of petitioner's claims in the R&R, the Court remains unpersuaded that petitioner should be afforded relief.
However, the Court notes that, in the R&R, the Magistrate Judge cites Daire v. Lattimore, 780 F.3d 1215 (9th Cir. 2015), in the discussion concerning petitioner's claim of ineffective assistance of counsel in Ground One. Specifically, the Magistrate Judge cites Daire for the proposition that, pursuant to Ninth Circuit precedent, it is not clearly established that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to noncapital sentencing. (See R&R at 14 & n.6). The Magistrate Judge also cites Daire in support of the determination that petitioner was not prejudiced by his counsel's failure to investigate and present evidence of petitioner's bipolar disorder as a mitigating factor for sentencing purposes. (See R&R at 17). On August 28, 2015, subsequent to the R&R being issued, the Ninth Circuit ordered that Daire be reheard en banc. See Daire v. Lattimore, ___ F.3d ___, 2015 WL 5090622 (9th Cir. Aug. 28, 2015). Although Daire is not to be cited now as precedent by any court of the Ninth Circuit, this does not change the outcome of the R&R. For the reasons explained in the R&R, petitioner's claim of ineffective assistance of counsel lacks merit because he cannot show he suffered prejudice. The rejection of petitioner's ineffective assistance claim in Ground One did not hinge on Daire, and thus the omission of Daire from the R&R would have no bearing on the Court's ultimate decision to deny petitioner habeas relief.
CONCLUSION
Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file records herein, the Magistrate Judge's Report and Recommendation, and petitioner's objections to the Report and Recommendation. The Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Report and Recommendation is accepted.
2. Judgment shall be entered consistent with this Order.
3. The clerk shall serve this Order and the Judgment on all counsel or parties of record DATED: February 9, 2016
/s/_________
HONORABLE DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE