Jason Alexander Mahoney v. R. Diaz

Filing 20

ORDER ACCEPTING REPORT AND RECOMMENDATIONS 16 OF U.S. MAGISTRATE JUDGE by Judge George H. Wu. IT THEREFORE IS ORDERED that the Petition is denied, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice. (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JASON ALEXANDER MAHONEY,

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Case

No. SACV 13-1082-GW (JPR)

Petitioner,

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ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

VS.

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R. DIAZ, Warden,

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

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Petition, records on file, and Report and Recommendation of the

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U.S. Magistrate Judge. On April 2, 2014, Petitioner filed

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objections to the Report and Recommendation, mostly simply

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repeating the arguments in the Petition and Reply. One of his

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contentions does warrant a response, however.

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He claims that the Magistrate Judge erred in stating, in

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connection with Petitioner’s ineffective-assistance-of-counsel

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claim, that Petitioner never identified whom his lawyer could

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have used as a witness to support Petitioner’s claim that he had

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left the PENI gang at the time of the underlying crimes.

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(Objections at 6.) Petitioner asserts that "James Hunt is

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mentioned in the trial transcripts and has provided a notarized

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affidavit in support based on his personal knowledge that

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Petitioner ’was retired when I met him in 2007," and that

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Petitioner attached Hunt’s declaration’ to the Reply. (Id. at

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n.6.) But Petitioner never submitted Hunt’s declaration to the

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state courts; indeed, Hunt didn’t even sign the declaration until

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November 2013 (Reply, Hunt Deci.), four months after the state

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supreme court denied the last of Petitioner’s state habeas

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petitions (see Lodged Doc. 16). Thus, the Magistrate Judge was

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See Cullen v. Pinhoister, 563 U.S. -, 131 S. Ct. 1388, 1398, 179

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L. Ed. 2d 557 (2011). In any event, given that Hunt was a "PENI

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’shot caller," as the California Court of Appeal noted (Lodged

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Doc. 8 at 5), Petitioner’s counsel might reasonably have decided

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that his testimony would not have been credible. The Court

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accepts the findings and recommendations of the Magistrate Judge.

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IT THEREFORE IS ORDERED that the Petition is denied,

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Petitioner’s request for an evidentiary hearing is denied, and

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Judgment be entered dismissing this action with prejudice.

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DATED:
U.S. DISTRICT JUDGE

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1 Because the document was not sworn to before a judge or
other authorized official, it is actually a declaration, not an
affidavit. See Black’s Law Dictionary 62, 436 (8th ed. 2004).