Philip Jones v. R.T.C. Grounds

Filing 159

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John W. Holcomb. Having reviewed de novo those portions of the R. & R. to which Petitioner objects, see 28 U.S.C. § 636(b)(1), the Court accepts the findings and reco mmendations of the Magistrate Judge in the R. & R. as well as in the January 19, 2017 order granting a stay, which the Court has read. Therefore, Judgment shall be entered denying the SAP and dismissing this action with prejudice. re: Report and Recommendation 155 , Objection 158 , Order Granting Stay 103 . (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PHILIP JONES,

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Petitioner,

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v.
KELLY SANTORO,1 Warden,

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Respondent.

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Case No. CV 13-7792-JWH (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

The Court has reviewed the Second Amended Petition, records

15 on file, and Report and Recommendation of U.S. Magistrate Judge,
16 which recommends that judgment be entered denying the SAP and
17 dismissing the action with prejudice.

See 28 U.S.C. § 636(b)(1).

18 Petitioner filed objections to the R. & R. on June 16, 2021;
19 Respondent did not reply.
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Most of Petitioner’s objections simply reargue points made

21 in his SAP and Traverse.

A few warrant discussion, however.

To

22 show deficient performance by his trial counsel, he again points
23 to counsel’s testimony during the evidentiary hearing that he did
24 not “investigate a mental state defense.”

(Objs. at 2.)

25 argues, in many cases that might be “significant.”

(Id.)

As he
But as

26 the Magistrate Judge pointed out, defense counsel’s testimony
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Kelly Santoro is the warden of North Kern State Prison,
where Petitioner is housed, and is substituted in under Federal
Rule of Civil Procedure 25(d) as the proper Respondent. See also
R.2(a), Rules Governing § 2254 Cases in U.S. Dist. Cts.

1 as a whole made clear that he at least somewhat investigated a
2 mental-state defense before reasonably deciding not to pursue the
3 issue further.

(See R. & R. at 26-31 (summarizing defense

4 counsel’s evidentiary-hearing testimony); see also id. at 39.)
5 He reviewed all five expert reports then available concerning
6 Petitioner’s mental state and discussed with Petitioner’s mother
7 and girlfriend his mental state immediately before the crimes.
8 (See id. at 27-29.)

When Petitioner’s mother mentioned a family

9 history of mental illness, he followed up by asking that she
10 provide him with more information, but she never did.
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(Id. at

And counsel knew from talking to the mother that Petitioner

12 had never been in mental-health treatment and had no medical
13 records concerning it.
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(Id.)

Defense counsel also knew from reading the expert reports

15 that many of Petitioner’s doctors suspected that he was
16 malingering.

(See id. at 27-28; see also id. at 36-39.)

As the

17 Magistrate Judge explained, he therefore reasonably decided to
18 pursue another defense at trial rather than risk having
19 Petitioner rely entirely on a flawed mental-state one.

(See

20 id. at 36-41.)
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On habeas review, “a federal court may grant relief only if

22 every ‘fairminded juris[t]’ would agree that every reasonable
23 lawyer would have made a different decision.”

Dunn v. Reeves,

24 141 S. Ct. 2405, 2411 (2021) (emphasis and alteration in
25 original) (quoting Harrington v. Richter, 562 U.S. 86, 101
26 (2011)).

Given the evidence of malingering, Petitioner’s

27 insistence to counsel that he did not commit the crimes (see R. &
28 R. at 26-27, 29), and the reasonableness of an identification
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1 defense given many witnesses’ failure to identify Petitioner and
2 the flaws in the identifications of those who did (see id. at 413 42), that is clearly not the case here.2
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Having reviewed de novo those portions of the R. & R. to

5 which Petitioner objects, see 28 U.S.C. § 636(b)(1)©, the Court
6 accepts the findings and recommendations of the Magistrate Judge
7 in the R. & R. as well as in the January 19, 2017 order granting
8 a stay, which the Court has read.

Therefore, Judgment shall be

9 entered denying the SAP and dismissing this action with
10 prejudice.
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IT IS SO ORDERED.

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13 DATED: November 17, 2021
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JOHN W. HOLCOMB
JOHN
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U.S. DISTRICT JUDGE
U S

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Petitioner argues that the Magistrate Judge erroneously
found that he raised his argument that “the superior court
‘unreasonably determined the facts by inserting its own opinions
and recollections into the record’” for the first time in his
Traverse and therefore had forfeited it. (Objs. at 3 (citing R.
& R. at 44).) He points to a short statement in his SAP
complaining about the superior court’s “leading questions” as
preserving the argument. (Id. at 3-4.) But a trial court asking
leading questions is not the same thing as it relying on its own
factual observations. In any event, as the Magistrate Judge
observed, “before the court questioned him, [defense counsel] had
testified that he considered the mental-state defense, and he
confirmed on redirect that he had weighed both defenses.” (R. &
R. at 44 (citation omitted).) Thus, any leading questions and
personal observations did not play a significant role in the
state court’s findings. (See also id. at 43-46.)
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