(HC) Orosco v. Gastelo ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Anthony Nabor Orosco, No. 2:19-cev-02624-KJM-DMC 12 Petitioner, ORDER 13 v. 14 Josie Gastelo, 1S Respondent. 16 17 Anthony Nabor Orosco, a state prisoner proceeding with retained counsel, petitions for a 18 | writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States 19 | Magistrate Judge under this District’s local rules. The Magistrate Judge has filed findings and 20 | recommendations, which were served on the parties and which contained notice that the parties 21 | may file objections. See generally F&Rs, ECF No. 18. Orosco objected. See generally Objs., 22 | ECF No. 21. Respondent neither objected nor responded to Orosco’s objections. 23 In his objections, Orosco identifies no factual errors in the Magistrate Judge’s findings 24 | and recommendations. The court has located none. The court also has reviewed the Magistrate 25 | Judge’s legal conclusions de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007). 26 | The Magistrate Judge’s findings and recommendations are supported by the record and the proper 27 | analysis. The court adopts them in full. The discussion below is necessary only to explain why 28 | Orosco’s objections do not identify any errors in the findings and recommendations. 1 Orosco objects only to the Magistrate Judge’s analysis of the state trial court’s responses 2 to two jury questions. See generally Objs., ECF No. 21; see F&Rs at 9–13. He does not object to 3 the recommendation to dismiss a claim about another question. See F&Rs at 13–14. Nor does 4 Orosco object to the Magistrate Judge’s recommendation to dismiss his claim that he received 5 ineffective assistance from his trial attorney in state court. See id. at 15–18. 6 The Magistrate Judge found the relevant claims were barred by the procedural default rule 7 described in cases such as Harris v. Reed, 489 U.S. 255, 260–63 (1989). See, e.g., F&Rs at 12– 8 13. Under that rule, federal courts do not entertain habeas petitions if the state court’s judgment 9 was based on a rule of state law that was both independent from federal law and adequate to 10 support the judgment. See Harris, 489 U.S. at 261–62. In Orosco’s case, the state courts rejected 11 his arguments about the jury’s questions because his attorney had not objected when the trial 12 court answered those questions. See People v. Orosco, No. C081139, 2018 WL 4501121, at *8 13 (Cal. Ct. App. Sept. 20, 2018) (unpublished). Under California law, when trial courts respond to 14 jury questions “with a generally correct and pertinent statement of the law,” defendants forfeit 15 any claims about the answer on appeal if they do not object. People v. Boyce, 59 Cal. 4th 672, 16 699 (2014). The Magistrate Judge found this rule was independent and adequate and barred 17 Orosco’s federal claims about questions 6 and 7. See F&Rs at 12–13. 18 Some of Orosco’s objections to this analysis indirectly criticize the California Court of 19 Appeal’s application of the state’s forfeiture rule. See, e.g., Objs. at 3–4 (distinguishing case 20 law); id. at 6–7 (parsing correct from incorrect responses to jury questions). This court cannot 21 grant his petition to correct any errors in the state courts’ interpretation of state law. “In 22 conducting habeas review, a federal court is limited to deciding whether a conviction violated the 23 Constitution, laws, or treaties of the United States.” See Estelle v. McGuire, 502 U.S. 62, 67 24 (1991). The question is not whether the state court’s decision was correct, but instead whether it 25 was “independent of the merits of the federal claim and an adequate basis for the state court’s 26 decision.” Harris, 489 U.S. at 260 (citations and quotation marks omitted). 27 Beyond these implicit criticisms, Orosco’s primary argument urges the court to conclude 28 the state’s forfeiture rule is not “adequate” in the necessary sense. See Objs. at 1–5. He argues 1 the state trial court had a duty to answer the jury’s questions correctly even if he did not object. 2 See id. at 2 (citing People v. Breverman, 19 Cal. 4th 142 (1998), among other authorities). 3 Orosco did not make this argument in his petition or traverse, so neither the Magistrate Judge nor 4 the respondent could consider or respond to it. A district court has discretion not to consider 5 arguments a petitioner raises for the first time in his objections. Akhtar v. Mesa, 698 F.3d 1202, 6 1208 (9th Cir. 2012). The court will not consider his new argument now. Orosco is represented 7 by counsel and could have raised the argument earlier. Nor is his interpretation of California law 8 so compelling that declining to consider it would lead to an injustice. For example, one 9 distinction between this case and the cases he cites is their focus on jury instructions rather than 10 answers to a jury’s questions. See, e.g., People v. Souza, 54 Cal. 4th 90, 112–13 (2012) 11 (considering requested instructions on lesser included offenses.). The reasons that have 12 motivated California’s appellate courts to impose an independent instructional duty do not 13 obviously translate to a trial court’s responses to jury questions. See, e.g., Breverman, 19 Cal. 4th 14 at 154–55 (discussing these motivations). 15 Orosco also argues the state’s forfeiture rules were not “adequate” because they were not 16 firmly established and regularly followed at the time his case went to trial. See Objs. at 3–5. A 17 review of California case law show otherwise. For many years, California appellate courts have 18 declined to hear arguments about a trial court’s answers to jury questions if those answers drew 19 no objections at trial. See, e.g., People v. Dykes, 46 Cal. 4th 731, 802–03 (2009); People v. 20 Rodrigues, 8 Cal. 4th 1060, 1191–92 (1994); People v. Johnson, 6 Cal. 4th 1, 52 (1993). And for 21 the same reasons described above, the court declines to consider Orosco’s new argument about 22 frictions between this forfeiture rule and a state trial court’s obligation to give instructions even 23 without a request or objection. See Objs. at 6. 24 The court has considered whether to issue a certificate of appealability. See 28 U.S.C. 25 § 2253(c); Fed. R. App. P. 22(b). For the reasons in the Magistrate Judge’s findings and 26 recommendations, the court declines to issue a certificate of appealability. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The findings and recommendations filed July 7, 2022, are adopted in full; 1 2. Petitioner’s petition for a writ of habeas corpus, ECF No. 1, is denied; 2 3. The court declines to issue a certificate of appealability; and 3 4. The Clerk of the Court is directed to enter judgment and close this file. 4 | DATED: February 21, 2023. /\ (] 5 l eae Murl { Q_/ CHIEF NT] ED STATES DISTRICT JUDGE