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Jimenez v. McEwen

United States District Court, C.D. California

August 18, 2014

ARTURO JIMENEZ, Petitioner,
v.
L.S. McEWEN, Warden, Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

VIRGINIA A. PHILLIPS, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the records on file, the Report and Recommendation of United States Magistrate Judge, and Petitioner's Objections to the Report and Recommendation ("Objections").

The Court will address certain contentions made by Petitioner in connection with his claim asserting that defense counsel was ineffective for failing to call Gustavo Ramos ("Ramos") to testify that he did not threaten Eric Rodriguez ("Rodriguez"), the principal prosecution witness in the case. Petitioner argues that the Magistrate Judge erroneously concluded that, since Ramos's declaration was not before the state courts that adjudicated Petitioner's ineffective assistance claim, the Supreme Court's decision in Cullen v. Pinholster , 131 S.Ct. 1388 (2011) bars its consideration in this action. According to Petitioner, Pinholster does not apply because his claim arises under 28 U.S.C. § 2254(d)(2) rather than 28 U.S.C. § 2254(d)(1). (Objections at 1, 20 & n.1.)

This argument is without merit. Although Pinholster concerned the scope of review under Section 2254(d)(1), the limitation on a federal habeas court's consideration of new evidence applies to claims arising under Section 2254(d)(2) as well as Section 2254(d)(1). Gulbrandson v. Ryan , 738 F.3d 976, 994 n.6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (2014); see also 28 U.S.C. 2254(d)(2) (allowing for habeas relief if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding"); Pinholster , 131 S.Ct. at 1400 n. 7 (comparing Section 2254(d)(1) to Section 2254(d)(2) and referring to the "additional clarity of § 2254(d)(2) on this point").

Moreover, Petitioner's claim is not properly analyzed under Section 2254(d)(2). Under § 2254(d)(2), a federal court is relieved of AEDPA deference when a state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hibbler v. Benedetti , 693 F.3d 1140, 1146 (9th Cir. 2012), cert. denied, 133 S.Ct. 1262 (2013). Section 2254(d)(2) applies when an "intrinsic analysis" of the state court's fact-finding process is implicated, i.e., "where petitioner challenges the state court's findings based entirely on the state record." Taylor v. Maddox , 366 F.3d 992, 999-1000 (9th Cir. 2004). Petitioner is challenging the state court's determination of the facts based on evidence - Ramos's declaration - that he did not obtain until after the conclusion of his state court proceedings. (See Amendment to Objections at 3.) Nor has he met the high threshold for showing that the state court's fact-finding process was unreasonable. Id .; Hibbler , 693 F.3d at 1146-47.

Petitioner next argues that the Court should stay this action to allow him to present his ineffective assistance claim to the state courts along with Ramos's declaration. (Amendment to Objections at 1-3.) As detailed in the Report and Recommendation, the state court's reasoned decision assumed that Ramos would have testified that he did not threaten Rodriguez, and nevertheless found that defense counsel's failure to call him to the stand was not ineffective. The Magistrate Judge also concluded that even if AEDPA did not preclude his consideration of Ramos's declaration, the contents of the declaration were insufficient to show prejudice under Strickland v. Washington , 466 U.S. 668 (1984). (Report and Recommendation at 23, 25.)

Petitioner cites Gonzalez v. Wong , 667 F.3d 965 (9th Cir. 2011), cert. denied, 133 S.Ct. 155 (2012), in which the Ninth Circuit held that a habeas petition should be stayed in order to allow the state courts to consider new evidence that had been suppressed by the prosecution, because the new evidence substantially strengthened the petitioner's claim. Id. at 972, 980. No such situation exists here, where there was no suppression by the state and the Magistrate Judge has already found that Petitioner's ineffective claim would fail even if supported by Ramos's declaration. Unlike Gonzalez, Petitioner does not have "a potentially meritorious claim." Gonzalez , 667 F.3d at 980; see also Rhines v. Weber , 544 U.S. 269, 277 (2005) (to support motion to stay, unexhausted claim must have merit). A stay of this action to allow Petitioner to present Ramos's declaration to the state courts would be futile, and Petitioner's request for a stay is DENIED.

Petitioner's remaining contentions in the Objections restate the arguments in his Petition and Reply, which were considered and rejected by the Magistrate Judge in the Report and Recommendation. Having made a de novo determination of the portions of the Report and Recommendation to which the Objections are directed, the Court accepts the findings and conclusions of the Magistrate Judge.

Accordingly, IT IS HEREBY ORDERED that: (1) the Petition for Writ of Habeas Corpus is denied; and (2) Judgment shall be entered dismissing the action with prejudice.


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