(HC) Montenegro v. Asuncion ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MONTENEGRO, No. 1:18-cv-01647-DAD-EPG 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 DEBBIE ASUNCION, (Doc. No. 24) 15 Respondent. 16 17 Petitioner Luis Montenegro is a state prisoner proceeding with counsel with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 29, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending that the petition of writ of habeas corpus be denied. (Doc. No. 24.) These 22 findings and recommendations were served upon petitioner and contained notice that any 23 objections were to be filed within fourteen (14) days from the date of service of that order. (Id.) 24 On July 13, 2020, petitioner timely filed objections to the findings and recommendation. (Doc. 25 No. 25.) 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 27 de novo review. Having carefully reviewed the entire file, including petitioner’s objections, the 28 ///// 1 court concludes that the findings and recommendation are supported by the record and proper 2 analysis. 3 Petitioner’s sole claim in his petition for federal habeas relief filed with this court is that 4 his Sixth and Fourteenth Amendment rights were violated when the state trial court in his 5 criminal prosecution admitted allegedly testimonial hearsay by the prosecution’s gang expert. 6 (Doc. No. 1 at 9.) In this claim, petitioner argues that his trial was prejudiced by a violation of 7 the Confrontation Clause, since he was unable to confront and cross-examine the prosecution’s 8 gang expert. (Doc. No. 25 at 4–5.) Respondent did not contest that a Confrontation Clause 9 violation occurred, but asserts that any such error in admitting the gang expert’s testimony at 10 petitioner’s trial was harmless. (Doc. No. 14 at 14–20.) 11 After performing a lengthy analysis addressing the factors used to determine prejudice in 12 the Confrontation Clause context, the assigned magistrate judge recommended that federal habeas 13 relief be denied. (Doc. No. 24 at 15–21.) The assigned magistrate judge emphasized that this 14 recommendation was due to the highly deferential standards the Antiterrorism and Effective 15 Death Penalty Act of 1996 (“AEDPA”) requires federal courts to apply to the decisions that state 16 courts had reached on the merits, and noted that “if this Court were conducting a de novo review, 17 it may have come to a different conclusion.” (Id. at 6–7, 19–20.) As the assigned magistrate 18 judge correctly outlined, here AEDPA restricts the reviewing court to determining “whether the 19 California Court of Appeals’ harmlessness determination was objectively unreasonable, i.e., that 20 it “was so lacking in justification that there was an error well understood and comprehended in 21 existing law beyond any possibility of fairminded disagreement.’” (Id. at 20.) 22 Petitioner’s objections focus on the conclusion reached in the pending findings and 23 recommendations that petitioner was not prejudiced by the alleged violation of his Sixth and 24 Fourteenth Amendment rights. (Doc. No. 25 at 4–7.) Furthermore, in the pending findings and 25 recommendations, the assigned magistrate judge acknowledged that due to the limited standard of 26 review required by AEDPA, petitioner had failed to show the state court’s conclusion that the 27 admission of the gang expert’s testimony was “objectively unreasonable.” (Doc. No. 24 at 19– 28 21.) Petitioner’s objections do not address the applicable legal standards but, instead, repeat 1 | arguments in support of finding prejudice that he has previously asserted. (See generally Doc. 2 | No. 22.) Because petitioner’s objections are unpersuasive and the analysis set forth in the 3 | pending findings and recommendations are supported by both the record and the law, the court 4 | will adopt those June 29, 2020 findings and recommendations in full. 5 Finally, the court declines to issue a certificate of appealability. A petitioner seeking writ 6 | of habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. 7 | See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 of the Rules 8 | Governing Section 2254 Cases requires that a district court issue or deny a certificate of 9 | appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22- 10 | 1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability 11 | will not issue unless a petitioner makes “‘a substantial showing of the denial of a constitutional 12 | right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of 13 | reason could disagree with the district court’s resolution of his constitutional claims or that jurists 14 || could conclude the issues presented are adequate to deserve encouragement to proceed further.” 15 | Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 In the present case, the court finds that reasonable jurists would not find the court’s 17 | rejection of petitioner’s claim to be debatable or conclude that the petition should proceed further. 18 | Thus, the court declines to issue a certificate of appealability. 19 Accordingly, for the reasons set forth above: 20 1. The findings and recommendation issued on June 29, 2020 (Doc. No. 24) are adopted; 21 2. The petition for writ of habeas corpus is denied; 22 3. The court declines to issue a certificate of appealability; and 23 4. The Clerk of the Court is directed to close this case. 24 95 IT IS SO ORDERED. ~ ‘ai 26 Dated: _ March 8, 2021 eee Te — UNITED STATES DISTRICT JUDGE 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28