Oscar Velasquez v. Warren L Montgomery

Filing 79

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 77 by Judge Mark C. Scarsi. IT THEREFORE IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted; and (2) judgment shall be entered denying the Petition and dismissing this action with prejudice. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OSCAR VELASQUEZ, 12 13 14 15 16 Petitioner, v. WARREN L. MONTGOMERY, Warden, Case No. 2:16-cv-06937-MCS-MAA ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Respondent. 17 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 of the United States 20 Magistrate Judge. The Court also has reviewed Petitioner’s objections to the 21 Report and Recommendation, which the Court received and filed on December 22, 22 2020 (“Objections”). (Objs., ECF No. 78.) As required by Federal Rule of Civil 23 Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 24 Report and Recommendation to which Petitioner specifically has objected. 25 Petitioner first reiterates that he is entitled to habeas relief on Ground One 26 because he had developed a close relationship with his previously retained attorney, 27 citing the California Supreme Court’s decision in Harris v. Superior Court, 19 28 1 Cal.3d 786 (1977). (Objs. 2–3.)1 However, as explained in the Report and 2 Recommendation (see Rep. & Recommendation 26–27), the state courts’ denial of 3 habeas relief on this claim did not violate clearly established federal law, which 4 holds that “the right to counsel of choice does not extend to defendants who require 5 counsel to be appointed for them[,]” United States v. Gonzalez-Lopez, 548 U.S. 6 140, 151 (2006). 7 Next, as to Ground Two, Petitioner emphasizes that he was prejudiced by his 8 trial attorney’s failure to secure the testimony of Guadelupe Perez, an eyewitness to 9 the incident who stated that Petitioner was unarmed and had complied with Officer 10 Vasquez’s instruction to raise his hands. (Objs. 3–4.) While Ms. Perez’s testimony 11 likely would have been helpful to the defense at trial by undermining Officer 12 Vasquez’s testimony that Petitioner pointed a handgun at him, it is not sufficient 13 that this testimony “had some conceivable effect on the outcome of the 14 proceeding.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Rather, to 15 establish prejudice, Petitioner must show a reasonable probability that Ms. Perez’s 16 testimony would have led to a more favorable outcome at trial. See Strickland, 466 17 U.S. at 694; accord Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The 18 likelihood of a different result must be substantial, not just conceivable.”). As 19 stated in the Report and Recommendation, Petitioner has not met this standard 20 because Ms. Perez saw the incident from a distance and may have had an obstructed 21 view, and she also was potentially biased by her friendship with Petitioner’s 22 girlfriend. (See Rep. & Recommendation 35–38.) Moreover, the state courts 23 reasonably determined that Petitioner failed to establish the first requirement for an 24 ineffective assistance of counsel claim—that his attorney’s performance was 25 constitutionally deficient. See Strickland, 466 U.S. at 688–89. As discussed in the 26 27 28 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECFgenerated headers of the parties’ filings. 2 1 Report and Recommendation, Petitioner’s attorney took reasonable steps to secure 2 Ms. Perez’s testimony, including serving a subpoena and obtaining a continuance, 3 and made the tactical decision not to pursue further measures such as a body 4 attachment out of concern for Ms. Perez’s health condition as well as concern that 5 physically compelling Ms. Perez to testify after her persistent refusal to comply 6 with a subpoena might have undermined the value of her testimony for the defense. 7 (See Rep. & Recommendation 35–37.) Thus, even if Petitioner had established 8 prejudice, his claim would fail on this basis. See Strickland, 466 U.S. at 687 9 (holding that an ineffective assistance claim requires both deficient performance 10 and prejudice); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy 11 either prong of the Strickland test obviates the need to consider the other.”). 12 Third, Petitioner reiterates his claim that his attorney was ineffective for 13 failing to object to Captain Krupnick’s testimony that he had been warned that the 14 Big Hazard gang had put a “hit” on the Los Angeles Police Department (“LAPD”). 15 (Objs 4–5.) He argues that an evidentiary hearing is required to determine whether 16 his attorney had a strategic reason for failing to object to this comment. (Id. at 5.) 17 However, this claim also fails and does not warrant an evidentiary hearing because, 18 as explained in the Report and Recommendation, Petitioner failed to establish 19 prejudice in light of the other testimony at trial concerning tensions between the Big 20 Hazard gang and the LAPD, including prior attempted murders of police officers by 21 other gang members and Petitioner’s own statements at the scene. See generally 22 Strickland, 466 U.S. at 694. (See Report & Recommendation 40–42.) 23 In sum, the Court finds no defect of law, fact, or logic in the Report and 24 Recommendation. The Court concurs with and accepts the findings, conclusions, 25 and recommendations of the United States Magistrate Judge, and overrules the 26 Objections. 27 28 3 1 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 2 the Magistrate Judge is accepted; and (2) judgment shall be entered denying the 3 Petition and dismissing this action with prejudice. 4 5 6 7 DATED: January 8, 2021 ___________________________________ ___________________________ MARK C. SCARSI UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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