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Dermendziev v. Uttecht

United States District Court, Ninth Circuit

December 3, 2013

DIMITAR DERMENDZIEV, Petitioners,
v.
JEFFREY A. UTTECHT, et al., Respondents.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Petitioner's objections[1] (Dkt. Nos. 48, 51) to the Report and Recommendation ("R&R") of the Honorable James P. Donohue, United States Magistrate Judge (Dkt. No. 42) and Petitioner's motion to supplement/expand the record (Dkt. No. 49). Judge Donohue's R&R recommends that the Court deny Mr. Dermendziev's § 2254 petition (Dkt. No. 1); deny Mr. Dermendziev a certificate of appealability; and deny as moot the remainder of Petitioner's motions, which include inter alia a motion to obtain discovery within and beyond the existing state-court record, a motion to dismiss and for default judgment, a motion to reconsider regarding Mr. Dermendziev's request to supplement the record, and a motion to reconsider Chief Judge Pechman's denial of Petitioner's recusal motion. ( See Dkt. Nos. 32, 35, 38-40.) Having thoroughly considered the R&R, the parties' briefing, and the relevant record, the Court finds oral argument unnecessary and ADOPTS the Report and Recommendation in full. (Dkt. No. 42.) Petitioner's motion to expand the record is DENIED.

I. DISCUSSION

A district court must conduct a de novo review of those portions of a magistrate judge's report to which a party properly objects. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3); Rule 8(b) of the Rules Governing Section 2254 Cases. A party properly objects when he or she files "specific written objections" to the magistrate judge's report as required under Federal Rule of Civil Procedure 72(b)(2). In contrast, general objections, or summaries of arguments previously presented, have the same effect as no objection at all, since the Court's attention is not focused on any specific issues for review. Howard v. Sec'y of Health and Human Svcs. , 932 F.2d 505, 509 (6th Cir. 1991).

Petitioner raises four grounds for relief in his § 2254 motion: (1) prosecutorial misconduct; (2) ineffective assistance of counsel regarding defense counsel colluding with the prosecution; (3) the trial judge's abuse of discretion; and (4) personal immunity from criminal prosecution. (Dkt. No. 42 at 5; 9 at 5-11.) Judge Donohue rejected Petitioner's claims and recommends that the Court dismiss Mr. Dermendziev's motion with prejudice (1) because Petitioner procedurally defaulted these claims by failing to fairly present them as federal constitutional issues to all levels of the state courts; and (2) because Mr. Dermendziev's petition fails to demonstrate that the state-court adjudication was contrary to, or an unreasonable application of, established federal law, or was an unreasonable determination of the facts in light of the evidence presented. (Dkt. No. 42 at 5.) Petitioner now objects to Judge Donohue's R&R by raising largely the same rambling, speculative, and conclusory contentions he made below. Upon review, the Court overrules Petitioner's objections, adopts the R&R, and dismisses the petition with prejudice.

Petitioner objects primarily on the basis that it is "self-evident" from his charts of evidence that "all claims in all 4 ground[s] have been overexhausted and moreover certified by the [Washington] Supreme Court[.]" (Dkt. No. 48 at 9, 11-12.) The Court disagrees. Judge Donohue specifically reviewed each of Petitioner's claims and cited the portions of the state-court record and opinions that demonstrate Mr. Dermendziev's failure to fairly present the claims as federal constitutional questions. (Dkt. No. 42 at 5-13.) While Petitioner presents pages of vague and repetitive arguments regarding the factual basis for his claims, he does not seriously grapple with the procedural default holding of the R&R. Additionally, the Court agrees with Judge Donohue's conclusion-which Petitioner has not seriously addressed-that he cannot overcome his procedural default because he has failed to demonstrate either cause for the default or actual prejudice or that a failure to consider his claims will result in a fundamental miscarriage of justice. (Dkt. No. 42 at 12) (citing Coleman v. Thompson , 501 U.S. 722, 750 (1991).) Because Mr. Dermendziev has not offered any actual reason to reject Judge Donohue's R&R, the Court agrees that Petitioner failed to fairly present his claims as federal constitutional claims.

In addition to his objections, Petitioner filed a lengthy addendum in which he argues that his prosecution and conviction were in violation of the First Amendment. This filing reiterates the First Amendment/common law immunity arguments raised before Judge Donohue. First, the Court is not satisfied that these claims were fairly presented to each level of the state courts. (Dkt. No. 42 at 10.) Further, even if it was to be considered on the merits, the Court finds that Petitioner's argument fails. As the Court construes Mr. Dermendzeiv's argument, he believes that he is entitled to immunity because he contacted state child protection services officials about his child's drug use problem. To support his argument, he relies on the " Noerr-Pennington doctrine" and RCW § 4.24.510 et seq . Mr. Dermendziev, however, does not and cannot demonstrate that any state court's determination was contrary to, or an unreasonable application of, established federal law, or was an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2). Indeed, the Court notes that RCW § 4.24.510 provides civil immunity, and the Noerr-Pennington doctrine generally provides statutory immunity for one's "petitioning conduct" only. Sosa v. DIRECTV, Inc. , 437 F.3d 923, 932-33 (9th Cir. 2006). Neither RCW § 4.24.510 et seq. nor the Noerr-Pennignton doctrine were unreasonably rejected by the state courts. Petitioner's objections are accordingly without merit.

II. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

(1) The Report and Recommendation (Dkt. No. 42) is ADOPTED;
(2) Petitioner's habeas petition is DENIED and the case is DISMISSED with prejudice;
(3) Petitioner is DENIED issuance of a certificate of appealability;
(4) Petitioner's motion at Dkt. No. 38 is DENIED as meritless and the motions at Dkt. Nos. 32, 35, 38, 39, 40, 49 are DENIED as moot; and
(5) The Clerk is respectfully directed to send copies of this Order to Petitioner and to Judge Donohue.

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