Fernando Duarte v. Tristan Lemon

Filing 37

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION by Judge Fernando M. Olguin for Report and Recommendation (Issued), 34 The Court accepts the findings and recommendations of the Magistrate Judge. ACCORDINGLY, IT IS ORDERED THAT : 1. Petitioner's request for a Rhines stay is denied. 2. The Petition's remaining claims are denied with prejudice. 3. Judgment be entered consistent with this order. 4. The clerk serve this Order and Judgment on all counsel or parties of record. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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FERNANDO DUARTE,
v.

Petitioner,

STEVEN SMITH, Acting Warden,

Case No. 2:22-cv-07590-FMO-JPR
ORDER ACCEPTING
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other

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records on file herein, the Magistrate Judge’s Report and Recommendation,

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Petitioner’s Objections to the Report and Recommendation, and Petitioner’s

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separate “Declaration” filed with the Objections.

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The Report and Recommendation (“Report”) recommends denial of the

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Petition and dismissal of this action with prejudice. (ECF No. 34.) Petitioner’s

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Objections to the Report and his Declaration (ECF Nos. 35-36) do not warrant a

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change to the Magistrate Judge’s findings or recommendation.

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Petitioner raises a “broad objection” that he is entitled to habeas relief for a

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claim under Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 35 at 3-5.) But

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Petitioner failed to raise a Brady claim. No Brady claim is suggested in the

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Petition. (ECF No. 1 at 12-18.) Nor did Petitioner seek to amend his Petition to

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add a Brady claim. Petitioner also does not specify what the alleged Brady

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evidence is. (ECF No. 35 at 3-5.) Petitioner filed this “broad objection” before, but

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the Court struck it from the docket because it was conclusory and appeared

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irrelevant to the current case. (ECF Nos. 29, 31.) For the same reasons, the

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objection is overruled. See Davis v. Washington State Department of Corrections,

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2021 WL 3674477, at *2 (9th Cir. 2021) (irrelevant objection is properly overruled)

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(citing United States v. Howell, 231 F.3d 615, 621-23 (9th Cir. 2000)).

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Petitioner objects that the Magistrate Judge erroneously determined that his

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claims of instructional error, in Grounds Four and Five, are unexhausted. (ECF No.

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36 at 3.) The Court previously accepted and again concurs with the Magistrate

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Judge’s earlier Report that the claims in Grounds Four and Five are unexhausted

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because Petitioner never fairly presented the federal nature of these claims to the

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California Supreme Court. (ECF No. 14 at 6-8; see also ECF No. 11-2 at 26-29.)

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Petitioner objects that he should be granted a stay for Grounds Four and Five

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under Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 36 at 4.) But Petitioner

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initially elected to voluntarily dismiss Grounds Four and Five, rather than seek a

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stay. (ECF No. 15.) The Court concurs with the Report that Petitioner did not

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show good cause for a Rhines stay, which he requested nearly a full year after

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voluntarily dismissing the claims and without any evidence of attempting to

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exhaust them during that time. (ECF No. 34 at 12-14.)

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The Court accepts the findings and recommendations of the Magistrate
Judge.

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ACCORDINGLY, IT IS ORDERED THAT:

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1. Petitioner’s request for a Rhines stay is denied.

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2. The Petition’s remaining claims are denied with prejudice.

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3. Judgment be entered consistent with this order.

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4. The clerk serve this Order and Judgment on all counsel or parties of
record.

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DATED: September 23, 2024
________________/s/_________________
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

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