Quinteros v. Paramo

Filing 17

ORDER (1) Adopting 16 Report And Recommendation and (2) Denying 1 Petition. It is ordered that the Court adopts in its entirety Judge Burkhardt's Report and Recommendation, (ECF No. 16), and denies with prejudice the Petition (ECF No. 1). Signed by Judge Janis L. Sammartino on 6/21/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LIONEL QUINTEROS, Case No.: 16-cv-583 JLS (JLB) Petitioner, 12 13 14 ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) DENYING PETITION v. DANIEL PARAMO, Warden, (ECF Nos. 1, 16) Respondent. 15 16 17 18 19 Presently before the Court are Petitioner’s Petition for Writ of Habeas Corpus 20 (“Pet.”), (ECF No. 1), and Magistrate Judge Jill L. Burkhardt’s Report and 21 Recommendation for Order Denying Petition for Writ of Habeas Corpus (“R. & R.”), (ECF 22 No. 16). 23 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 24 court’s duties in connection with a magistrate judge’s Report and Recommendation. The 25 district court must “make a de novo determination of those portions of the report to which 26 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 28 States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 1 16-cv-583 JLS (JLB) 1 617 (9th Cir. 1989). In the absence of timely objection, however, the Court “need only 2 satisfy itself that there is no clear error on the face of the record in order to accept the 3 recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. 4 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 5 In the present case, Petitioner’s objections were due by May 29, 2017. (R. & R. 24.) 6 Nearly a month has passed since the due date, and the Court has heard nothing from 7 Petitioner. Accordingly, Petitioner failed to timely object to the Report and 8 Recommendation.1 9 Finally, having reviewed the Report and Recommendation, the Court finds that it is 10 well reasoned and contains no clear error. Petitioner claims that his co-Defendant’s attack 11 on Counsel during trial—and the several resulting effects—were so inherently prejudicial 12 to Petitioner that he was deprived of his constitutional right to trial by an impartial jury. 13 (See generally Pet.) However, the trial judge conducted appropriate inquiry with the jurors 14 and dismissed those he felt could no longer be fair and impartial; and all indications are 15 that remaining the jurors ultimately delivered a mixed verdict regarding Petitioner precisely 16 because they considered only the evidence presented at trial. (See generally R. & R.); see 17 also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (explaining that habeas petitioners 18 “are not entitled to habeas relief based on trial error unless they can establish that it resulted 19 in ‘actual prejudice.’ ” (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). Further, 20 Petitioner’s claims regarding the prejudicial effect of being shackled during trial were 21 22 1 23 24 25 26 27 28 Several filings in this case were sent to Petitioner but returned as undeliverable. (ECF Nos. 6, 15.) However, these undelivered documents were sent to the same address that Petitioner originally indicated on his Petition. (Compare ECF No. 1, with ECF Nos. 6, and 15.) And during the course of this litigation Petitioner has previously successfully received documents at that address. (Compare Order Dismissing Case Without Prejudice, ECF No. 2 (explaining that Petitioner could proceed with case by submitting “no later than May 13, 2016, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee” (emphases removed)), with ECF No. 3 (filing fee receipt, paid on May 13, 2016).) Accordingly, Plaintiff was under a duty to notify the Court of any change of address. See Civ. L.R. 83.11(b) (explaining that if mail is returned and a pro se plaintiff fails to “notify the court and opposing parties within 60 days thereafter of the plaintiff’s current address, the court may dismiss the action without prejudice for failure to prosecute”). 2 16-cv-583 JLS (JLB) 1 raised and rejected for the first time on appeal, and therefore were denied on an adequate 2 and independent state ground that would be improper for this Court to consider on federal 3 habeas review. See Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995) (“We do not 4 address this contention because it is procedurally barred. The California Supreme Court 5 concluded that Bonin had failed to raise properly any objection during his trial.”). And the 6 record reflects that even if the jurors did, in fact, see Petitioner in leg or hand restraints, 7 such viewing was brief and harmless given the weight of the state’s evidence and the jurors’ 8 ultimately mixed verdict. 9 Given the foregoing, the Court therefore (1) ADOPTS in its entirety Judge 10 Burkhardt’s Report and Recommendation, (ECF No. 16), and (2) DENIES WITH 11 PREJUDICE the Petition, (ECF No. 1). 12 13 IT IS SO ORDERED. Dated: June 21, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-cv-583 JLS (JLB)

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