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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9 10 11 SANTOS LEONEL XOTOY, Case No. 2:22-cv-09431-HDV (SK)

12 Petitioner, ORDER ACCEPTING REPORT AND v. RECOMMENDATION OF UNITED 13 STATES MAGISTRATE JUDGE 14 PATRICK COVELLO, 15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 19 on file, and the Report and Recommendation (“Report”) of the United States 20 Magistrate Judge. Further, the Court has engaged in a de novo review of those 21 portions of the Report to which objections have been made. 22 The Report recommends the denial of the Petition and the dismissal of this 23 action with prejudice. (ECF No. 13.) Petitioner’s late objections to the Report 24 (ECF Nos. 15, 17) do not merit a change to the Report’s proposed findings or 25 recommendations. 26 Petitioner objects that the prosecutor committed misconduct during closing 27 argument by misstating the law of voluntary manslaughter based on heat of passion. 28 (ECF No. 15 at 1-3; ECF No. 17 at 1-3.) It was not objectively unreasonable for 1 the California Court of Appeal to conclude that, even if it is assumed that the prosecutor misstated the law, such an error was harmless. The “evidence of 2 provocation was both weak and contradicted.” (ECF No. 9-6 at 9.) The evidence 3 showed that Petitioner “exhibited what could be viewed as mental reflection and 4 deliberation after each of the times he claims he was ‘provoked.’” (ECF No. 14 at 5 12.) Moreover, the trial court correctly instructed the jury on voluntary 6 manslaughter, and the “jury is regularly presumed to accept the law as stated by the 7 court, not as stated by counsel.” (Id. at 13 (quoting United States v. Rodrigues, 159 8 F.3d 439, 451 (9th Cir. 1998).) 9 Petitioner objects that his sentence imposes multiple punishments for a single 10 act, in violation of California Penal Code § 654. (ECF No. 15 at 3-4; ECF No. 17 11 at 3-4.) Petitioner did not raise this claim in his Petition. (ECF No. 1 at 5-6.) 12 Moreover, the claim is not cognizable in a federal habeas action. See Watts v. 13 Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (sentencing claim based on an 14 alleged violation of Section 654 is not cognizable in federal habeas action). 15 Petitioner objects that his counsel was ineffective for failing to object to the 16 sentence that was imposed. (ECF No. 15 at 4; ECF No. 17 at 4.) As the Report 17 found, however, Petitioner did not point to any arguments of counsel that could 18 have made a difference. (ECF No. 14 at 14-15.) Moreover, the record showed that 19 the trial court was aware of its discretion not to impose the firearm enhancement 20 but declined to do so. (Id. at 15.) 21 Petitioner objects that he has a due process right to determine his ability to 22 pay restitution. (ECF No. 15 at 5; ECF No. 17 at 5.) As the Report found, 23 however, challenges to restitution are not cognizable in federal habeas corpus 24 actions. (ECF No. 14 at 15-16.) 25 \\ 26 \\ 27 \\ 28 1 IT IS ORDERED that (1) the Report and Recommendation 1s accepted; and 2 || (2) the Petition is denied, and the action is dismissed with prejudice 3 4 || DATED: _6/16/25 AY Wy? 5 □□□ — 6 7 HERNAN D. VERA

UNITED STATES DISTRICT JUDGE

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