Edward Buentiempo v. H. Lackner

Filing 24

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Beverly Reid O'Connell for Report and Recommendation (Issued), 19 . IT IS ORDERED that the Petition is denied without leave to amend, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDWARD BUENTIEMPO,

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Petitioner,

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vs.

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HEIDI M. LACKNER, Warden,

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Respondent.

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) Case No. CV 13-9121-BRO (JPR)
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) ORDER ACCEPTING FINDINGS AND
) RECOMMENDATIONS OF U.S.
) MAGISTRATE JUDGE
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the

17 Petition, records on file, and Report and Recommendation of the
18 U.S. Magistrate Judge.

On October 1, 2014, Petitioner filed

19 objections to the R&R, in which he mostly simply repeats the
20 arguments in his Petition and Traverse.

Most of Petitioner’s

21 objections relate to his claims centering on the photo-lineup
22 identifications made by the two victims; Petitioner alleges that
23 neither witness spoke English, the record is unclear on who
24 translated for them during the identification procedures, the
25 identifications were unduly suggestive as a result, and his
26 lawyer was ineffective for not challenging the identifications
27 more vigorously.

The Magistrate Judge reasonably rejected all of

28 these arguments in the Report and Recommendation.
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(See R&R at 9-

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At about the same time that the Magistrate Judge

2 filed the Report and Recommendation, the Ninth Circuit Court of
3 Appeals issued a decision affirming at least part of the
4 reasoning in it: no clearly established law holds that a witness
5 must be given an admonition before viewing a photo lineup, see
6 United States v. Carr, 761 F.3d 1068, 1076 (9th Cir. 2014), and
7 therefore no habeas relief was available on Petitioner’s claims
8 asserting that even if an admonition was given, the witnesses
9 couldn’t understand it (see R&R at 14).

For all these reasons,

10 the Court accepts the findings and recommendations of the
11 Magistrate Judge.
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IT IS ORDERED that the Petition is denied without leave to

13 amend, Petitioner’s request for an evidentiary hearing is denied,
14 and Judgment be entered dismissing this action with prejudice.
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16 DATED: October 21, 2014
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BEVERLY REID O’CONNELL
U.S. DISTRICT JUDGE

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