Romero claim is not cognizable on federal 6 || habeas review
How later courts described this case
- Romero claim is not cognizable on federal 6 || habeas review
- “[T]his 27 || argument presents state-law foundation and admissibility questions that raise no 28 || federal habeas issues.” (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991))
- “Merely showing 2 || that access to evidence was denied does not establish a constitutional violation.” 3 | (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982))
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 | CHARLES EDWARD ALLEN, Case No. 2:17-cv-09239-PSG-MAA
Petitioner, ORDER ACCEPTING REPORT AND
ep Sree bee
14 | W.L. MONTGOMERY, Warden,
15 Respondent.
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18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other
19 || records on file herein, and the Report and Recommendation (“R&R”) of the United
20 || States Magistrate Judge. Further, the Court has engaged in a de novo review of
21 || those portions of the R&R to which objections have been made. For the reasons
22 || below, Petitioner’s Objections are overruled.
23 Petitioner objects under Ground One that his constitutional rights were
24 || violated because two state court judges denied Petitioner’s requests to have his
25 || defense investigator inspect the crime scene, based on the judges’ mistaken belief
26 || that they lacked authority to grant the requests (“Objections”). (Objs., ECF No. 59,
27 | at 9, 14-15.) But even assuming it were true that the judges improperly denied the
28 || requests because they misperceived their authority, this does not entitle Petitioner to
1 || relief. See Murray v. Schriro, 882 F.3d 778, 809 (9th Cir. 2018) (“Merely showing
2 || that access to evidence was denied does not establish a constitutional violation.”
3 | (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982))). Contrary to
4 || Petitioner’s suggestion that the error was structural, (Objs., at 15), a showing of
5 || prejudice was required, see United States v. Dring, 930 F.2d 687, 693 (9th Cir.
6 || 1991). Petitioner did not show prejudice because he did not plausibly argue in the
7 || state court why access to the crime scene was necessary, and because other sources
8 || of evidence were accessible to him (such as photographs and witnesses) about the
9 || particular features of the crime scene. (See R&R, ECF No. 55, at 19.)
10 Petitioner next objects under Ground Two that his constitutional rights were
11 || violated by the denial of his motion pursuant to Pitchess v. Superior Court, 11 Cal.
12 || 3d 531 (1974), for information from the personnel files of the police officers who
13 || helped investigate the crimes. (Objs., at 10, 15-16.) Habeas relief for this claim is
14 || unwarranted because Petitioner did not make, for each officer, “a preliminary
15 || showing that the file contains information material to his defense.” See Harrison v.
16 | Lockyer, 316 F.3d 1063, 1066 (9th Cir. 2003).
17 Petitioner next objects under Ground Three that his right to present a defense
18 || was violated by the trial court’s refusal to allow Petitioner use of a mannequin at
19 || trial to demonstrate that it would have been impossible for Petitioner to have
20 || attacked the victim in the manner the victim alleged. (Objs., at 11, 16-18.) The
21 || California Court of Appeal opined that such a demonstration was inadmissible
22 |} because it “would most certainly be misleading and confusing for the jury.” (R&R,
23 | at 25.) Although Petitioner disagrees that it would have been misleading, by
24 || arguing that “an appropriate mannequin comparable to [the victim’s] height could
25 || have been selected,” (Objs., at 18), Petitioner’s argument is not subject to federal
26 || habeas review, see Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir. 1995) (“[T]his
27 || argument presents state-law foundation and admissibility questions that raise no
28 || federal habeas issues.” (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991))). And
1 although Petitioner further argues that he was barred from “cross-examining [the
2 || victim] with a demonstrative aid simply because he was a pro/per litigant,” (Objs.,
3 || at 18), this argument is unsupported by the record. Nothing in the record suggests
4 || that Petitioner’s status as a pro per defendant during trial was the reason why the
5 || demonstration with a mannequin was denied. Rather, the demonstration was
6 || denied because it would have turned the victim’s cross-examiner, regardless of
7 || whether that cross-examiner was a pro per defendant or an attorney, into an
8 || unsworn witness. (R&R, at 24-25.)
9 Petitioner next objects under Ground Four that his state-created right to pro
10 || per library privileges was revoked in violation of due process. (Objs., at 11-12,
11 || 19-21.) He first argues that he “was not given proper notice” of the disciplinary
12 || proceeding that led to the revocation of his library privileges. (/d., at 12, 19.) To
13 || the extent that Petitioner is arguing that he did not receive a “written statement by
14 || the factfinders as to the evidence relied on and reasons for the disciplinary action,”
15 || see Wolff v. McDonnell, 418 U.S. 539, 564 (1974), the record permits a strong
16 || inference that he did. Officer Hinton declared that he gave Petitioner a copy of the
17 || disciplinary decision. (R&R, at 37.). The declaration was consistent with
18 || subsequent events, specifically, Petitioner’s objections to the decision. (/d.)
19 Petitioner also argues under Ground Four that he was improperly denied “the
20 || ability to present witnesses in his defense at the jail administrative hearing” that led
21 | to the revocation of his library privileges. (Objs., at 12, 19.) However, Petitioner’s
22 || right to present witnesses was not absolute, and jail officials did not violate due
23 || process by accepting the witnesses’ written statements in lieu of live testimony.
24 || (R&R, at 36.) Petitioner also argues under Ground Four that he should have
25 || received access to online legal research. (Objs., at 12, 19.) However, Petitioner
26 || never requested access to online legal research, and there was no right to such
27 || research, under either federal or state law. (R&R, at 38-39.)
28 || ///
1 Petitioner finally objects under Ground Five that the trial court abused its
2 || sentencing discretion under People v. Superior Court (Romero), 13 Cal. 4th 497
3 || (1996), by declining to dismiss his prior strike convictions. (ECF No. 59 at 12, 22—
4 || 23.) This claim is not cognizable on federal habeas review. See Brown v. Mayle,
5 || 283 F.3d 1019, 1040 (9th Cir. 2002) (Romero claim is not cognizable on federal
6 || habeas review), judgment vacated on other grounds, 538 U.S. 901 (2003). More
7 || broadly, Petitioner’s argument does not state a claim. Petitioner is not arguing that
8 || the trial court misunderstood its sentencing discretion, refused to hear Petitioner’s
9 |) arguments, or otherwise conducted a procedurally flawed sentencing hearing.
10 || Petitioner is only arguing that the result of the sentencing hearing, i.e., the actual
11 |} sentence imposed, was wrong because his prior strike convictions should have been
12 |} dismissed as remote in time. (Objs., at 22-23.) This argument does not raise a due
13 || process claim. See McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991)
14 || (where a habeas petitioner had “a full and fair opportunity to have his case heard”
15 || and only challenges “the substantive result’ or “the actual sentence itself,” he does
16 || not raise “a cognizable constitutional claim on the facts alleged” (emphasis in
17 || original)).
18 IT IS THEREFORE ORDERED that (1) the Report and Recommendation of
19 | the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the
20 || Petition and dismissing this action with prejudice.
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22 || DATED: poly Zoi
LZ.
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25 UNITED STATES DISTRICT JUDGE
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