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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAMON LOPEZ, Case No. 16cv2612-BTM (MDD) 12 Petitioner, 13 14 v. 15 16 17 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 18 19 (3) ISSUING A CERTIFICATE OF APPEALABILITY 20 21 Petitioner Ramon Lopez is a state prisoner proceeding pro se with a Petition for a 22 Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner 23 challenges his convictions from the San Diego County Superior Court for committing lewd 24 acts on a child under the age of fourteen in violation of California Penal Code § 288(a), 25 claiming in his Petition that there is insufficient evidence that he touched the victim with 26 the intent to become sexually aroused, and that the jury was improperly instructed that: 27 “Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the 28 perpetrator or the child is not required” for a conviction. (Id. at 6-7.) Petitioner added a 1 16cv2612-BTM (MDD) 1 claim in his Traverse alleging that California Penal Code § 288(a) is unconstitutionally 2 vague because it criminalizes any touching of a child. (ECF No. 10.) 3 Presently before the Court is a Report and Recommendation (“R&R”) by United 4 States Magistrate Judge Mitchell D. Dembin. (ECF No. 11.) The Magistrate Judge 5 recommends denying habeas relief based on a finding that the adjudication by the state 6 court of the claims in the Petition is neither contrary to, nor involves an unreasonable 7 application of, clearly established federal law. (R&R at 9-22.) The Magistrate Judge 8 declined to consider the claim raised in the Traverse because Petitioner had been instructed 9 at the beginning of the case that “[g]rounds for relief withheld until the traverse will not be 10 considered.” (R&R at 12 n.1.) Petitioner has filed objections to the R&R in which he 11 requests this Court conduct a de novo review of the findings and conclusions of the 12 Magistrate Judge, reject them, grant habeas relief, and issue a Certificate of Appealability. 13 (ECF No. 16.) 14 The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides 15 that: “A judge of the court shall make a de novo determination of those portions of the 16 report or specified proposed findings or recommendations to which objection is made. A 17 judge of the court may accept, reject, or modify, in whole or in part, the findings or 18 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 19 The Court has conducted a de novo review of the R&R and adopts in full the detailed 20 and well-reasoned findings and conclusions of the Magistrate Judge. Petitioner is not 21 entitled to federal habeas relief as to any claim presented in the Petition for the reasons set 22 forth in the R&R. The Court declines to exercise its discretion to address the claim raised 23 for the first time in the Traverse that California Penal Code § 288(a) is unconstitutionally 24 vague, because it was raised after the Answer was filed, there is no indication it was 25 presented to the state court, and it lacks merit. See e.g. Shumate v. Newland, 75 F.Supp.2d 26 1076, 1084-85 (N.D. Cal. 1999) (rejecting claim). 27 The Court issues a Certificate of Appealability as the claims presented in the 28 Petition. The Court declines to issue a Certificate of Appealability as to the claim raised 2 16cv2612-BTM (MDD) 1 in the Traverse because Petitioner has not shown that “reasonable jurists would find the 2 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 3 McDaniel, 529 U.S. 473, 484 (2000). 4 CONCLUSION AND ORDER 5 The Court ADOPTS the findings and conclusions of the Magistrate Judge as set 6 forth above, DENIES the Petition for a writ of habeas corpus, and ISSUES a Certificate 7 of Appealability as to all claims presented in the Petition. The Clerk shall enter judgment 8 accordingly. 9 DATED: July 10, 2017 10 11 _____________________________________ BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv2612-BTM (MDD)

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