Carlos Dagoberto Rivas v. Sherman Spearman

Filing 14

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge James V. Selna for Report and Recommendation (Issued), 12 . Accordingly, having made a de novo determination of those portions of the Report and Recommendation to w hich objections have been made, the Court concurs with and accepts the Magistrate Judge's recommendation that the Petition be denied. IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and 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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CARLOS DAGOBERTO RIVAS,

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Petitioner,

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v.

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SHAWN HATTON, Warden,

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Respondent.

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Case No. SACV 16-0307-JVS (JPR)
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, all the records and files of this case, and the Report
18 and Recommendation of U.S. Magistrate Judge.
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On December 12, 2016, Petitioner filed objections to the

20 R. & R., in which for the most part he simply repeats arguments
21 in the Petition and Traverse.
22 discussion.

Only two objections warrant

First, he repeats his claim that translation

23 “discrepancies” in his interview transcripts rendered the state
24 courts’ denial of his Miranda claim “flawed and erroneously
25 reached.”

(Objs. at 5-6; see also Pet., Attach. Mem. at 18 n.3

26 (noting same transcript discrepancies).)

Second, as to his

27 consular-notification claim, Petitioner cites out-of-circuit
28 authority purportedly demonstrating that some federal courts have
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1 held that Article 36 of the Vienna Convention confers
2 individually enforceable rights.

(Objs. at 8-9.)

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The fact that the prosecution

Both objections lack merit.

4 used English translations of Petitioner’s interview transcripts
5 at the Miranda hearing that were slightly different from those
6 given to the jury at his trial two days later was well noted and
7 explored by defense counsel.

(See, e.g., Lodged Doc. 3 at 33-41

8 & n.23 (citing both translations in detail but conceding that
9 they were “identical in content” except for minor stylistic
10 differences); Lodged Doc. 10 at 4 n.3 (noting same issue in
11 petition for review, that “[t]he two sets of transcripts are not
12 identical”).)

In his appellate brief, Petitioner expressly

13 acknowledged that the different versions were essentially
14 “identical in content”:
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Court Exhibit 2, which appears in the record (2

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CT 349-397), is identical in content (with a slight

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pagination difference) to People’s Exhibit 6A (2 CT

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254-302), which was admitted into evidence at trial

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. . . .

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record (2 CT 398-443), is identical in content (with

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a different footer) to People’s Exhibit 6B (2 CT 303-

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348),

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trial . . . .1

Court Exhibit 3, which also appears in the

which

was

admitted

into

evidence

at

24 (See Lodged Doc. 3 at 33 n.23 (some record citations omitted).)
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As Petitioner correctly noted, the transcripts admitted at

27 the pretrial Miranda hearing were marked as court exhibits 2 and
3, and the transcripts given to the jury at trial were marked as
28 People’s exhibits 6A and 6B. (See Objs. at 5.)
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In any event, as the R. & R. makes clear, “[b]ecause Miranda

2 involves a totality-of-circumstances inquiry,” whether Petitioner
3 knowingly and voluntarily waived his Miranda rights does not
4 depend on any specific words or utterances in isolation (see R. &
5 R. at 11, 27-30) — including, for example, whether he said “Uh6 huh, yes, if [indecipherable] I can’t say anything?” or “Uh-huh,
7 yes, if [indecipherable] now I can’t tell you anything?” in
8 confirming his understanding of his right to remain silent (see
9 Objs. at 5-6).

(See also R. & R. at 30 (finding no law requiring

10 suspect to “affirmatively indicate after each of the four
11 warnings his understanding of it”).)
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Further, the Magistrate Judge did not say that no court has

13 ever held that Article 36 of the Vienna Convention confers
14 individual rights; rather, she correctly noted that “the Supreme
15 Court has never clearly established that the Vienna Convention
16 creates judicially enforceable private rights,” citing, among
17 others, various Supreme Court cases in support.
18 33-34.)

(See R. & R. at

Thus, because federal habeas review looks only to

19 clearly established Supreme Court decisions for guidance,
20 Petitioner’s second objection has no merit.
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Accordingly, having made a de novo determination of those

22 portions of the Report and Recommendation to which objections
23 have been made, the Court concurs with and accepts the Magistrate
24 Judge’s recommendation that the Petition be denied.
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IT THEREFORE

1 IS ORDERED that Judgment be entered denying the Petition and
2 dismissing this action with prejudice.
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5 DATED: January 9, 2017
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JAMES V. SELNA
U.S. DISTRICT JUDGE

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