(HC) Rivas v. Kernan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE RODOLFO RIVAS, No. 2:16-cv-2904 KJM AC P 12 Petitioner, 13 v. ORDER 14 SCOTT KERNAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ 18 of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 16, 2021, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within twenty-one days. ECF No. 21. Petitioner has filed 23 objections to the findings and recommendations. ECF No. 25. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. 27 The court writes separately to note that in his objections petitioner advances for the first 28 time a contention that there was cumulative error from the three instances of ineffective 1 | assistance of counsel alleged in the petition. Petitioner has not raised a claim of cumulative error 2 | inthe petition. See ECF No. 1, passim. A claim of cumulative error is distinct from claims based 3 || on individual alleged errors, see Wooten v. Kirkland, 540 F.3d 1019, 1026-26 (9th Cir. 2008), and 4 || new claims are not properly raised for the first time in pleadings that follow the original petition, 5 || see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). For these reasons, the court 6 || has not considered petitioner’s contention that counsel’s alleged errors had a cumulatively 7 | harmful effect. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed March 16, 2021, ECF No. 21, are adopted in 10 | full; 11 2. The petition for writ of habeas corpus 1s denied and this case is closed; and 12 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 13 | § 2253. 14 | DATED: September 29, 2021. 15 7 CHIEF ED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28