Lopez v. Vazquez

Filing 18

ORDER: (1) Adopting the 11 Findings and Conclusions of United States Magistrate Judge; (2) Denying Petition for a Writ of Habeas Corpus; and (3) Issuing a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 7/10/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMON LOPEZ,

Case No. 16cv2612-BTM (MDD)

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Petitioner,

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v.

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PAT L. VAZQUEZ, Warden,
Respondent.

ORDER:
(1) ADOPTING THE FINDINGS AND
CONCLUSIONS OF UNITED STATES
MAGISTRATE JUDGE;
(2) DENYING PETITION FOR A WRIT
OF HABEAS CORPUS; and

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(3) ISSUING A CERTIFICATE OF
APPEALABILITY

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Petitioner Ramon Lopez is a state prisoner proceeding pro se with a Petition for a

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Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner

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challenges his convictions from the San Diego County Superior Court for committing lewd

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acts on a child under the age of fourteen in violation of California Penal Code § 288(a),

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claiming in his Petition that there is insufficient evidence that he touched the victim with

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the intent to become sexually aroused, and that the jury was improperly instructed that:

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“Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the

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perpetrator or the child is not required” for a conviction. (Id. at 6-7.) Petitioner added a
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16cv2612-BTM (MDD)

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claim in his Traverse alleging that California Penal Code § 288(a) is unconstitutionally

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vague because it criminalizes any touching of a child. (ECF No. 10.)

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Presently before the Court is a Report and Recommendation (“R&R”) by United

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States Magistrate Judge Mitchell D. Dembin. (ECF No. 11.) The Magistrate Judge

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recommends denying habeas relief based on a finding that the adjudication by the state

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court of the claims in the Petition is neither contrary to, nor involves an unreasonable

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application of, clearly established federal law. (R&R at 9-22.) The Magistrate Judge

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declined to consider the claim raised in the Traverse because Petitioner had been instructed

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at the beginning of the case that “[g]rounds for relief withheld until the traverse will not be

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considered.” (R&R at 12 n.1.) Petitioner has filed objections to the R&R in which he

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requests this Court conduct a de novo review of the findings and conclusions of the

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Magistrate Judge, reject them, grant habeas relief, and issue a Certificate of Appealability.

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(ECF No. 16.)

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The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides

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that: “A judge of the court shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made. A

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judge of the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

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The Court has conducted a de novo review of the R&R and adopts in full the detailed

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and well-reasoned findings and conclusions of the Magistrate Judge. Petitioner is not

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entitled to federal habeas relief as to any claim presented in the Petition for the reasons set

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forth in the R&R. The Court declines to exercise its discretion to address the claim raised

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for the first time in the Traverse that California Penal Code § 288(a) is unconstitutionally

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vague, because it was raised after the Answer was filed, there is no indication it was

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presented to the state court, and it lacks merit. See e.g. Shumate v. Newland, 75 F.Supp.2d

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1076, 1084-85 (N.D. Cal. 1999) (rejecting claim).

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The Court issues a Certificate of Appealability as the claims presented in the

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Petition. The Court declines to issue a Certificate of Appealability as to the claim raised
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16cv2612-BTM (MDD)

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in the Traverse because Petitioner has not shown that “reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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CONCLUSION AND ORDER

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The Court ADOPTS the findings and conclusions of the Magistrate Judge as set

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forth above, DENIES the Petition for a writ of habeas corpus, and ISSUES a Certificate

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of Appealability as to all claims presented in the Petition. The Clerk shall enter judgment

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accordingly.

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DATED: July 10, 2017

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_____________________________________
BARRY TED MOSKOWITZ
UNITED STATES DISTRICT JUDGE

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16cv2612-BTM (MDD)