1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 NOE HERNANDEZ, Case No. CV 20-4730-MWF (RAO)

12 Petitioner

ORDER ACCEPTING REPORT

13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 RAYMOND MADDEN, Warden, JUDGE; GRANTING

CERTIFICATE OF

15 Respondent. APPEALABILITY 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 18 Petition (“FAP,” Docket No. 18), Respondent’s Answer to the FAP (“Answer”; 19 Docket No. 32), the Traverse (Docket No. 38), Petitioner’s Supplemental Brief on 20 Claim One of the FAP (Docket No. 51), Respondent’s Response to Petitioner’s 21 Supplemental Brief (Docket No. 55), Petitioner’s Offer of Proof (Docket No. 76), 22 the Report and Recommendation of United States Magistrate Judge (“Report”; 23 Docket No. 79); Petitioner’s Objections to the Report (“Objections”; Docket No. 24 81); Respondent’s Response to the Objections (“Response”; Docket No. 86), and the 25 other relevant records on file. 26 The Court has conducted a de novo review of the portions of the Report to 27 which the Objections are directed. Although not required, the Court briefly 28 discusses the following points Petitioner’s ineffective assistance of counsel claim in 1 Ground One. See United States v. Ramos, 65 F.4th 427, 434 (9th Cir. 2023) (“the 2 district court ha[s] no obligation to provide individualized analysis of each 3 objection”); Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005) (affirming a 4 cursory district court order summarily adopting, without addressing any objections, 5 a magistrate judge’s report and recommendation). 6 The Report finds Ground One fails under both prongs of Strickland v. 7 Washington, 466 U.S. 668 (1984), even under de novo review. (Docket No. 79 at 8 32-36). Regarding the deficient-performance prong, the Report concluded that trial 9 counsel’s assessment not to call as alibi witnesses Anthony Marinelli (“Marinelli”) 10 and Eddie Woodson (“Woodson”) was not unreasonable because it risked putting 11 deceitful testimony before the jury, as well as introducing critical evidence in 12 support of the prosecution’s case that Petitioner was seen driving a Nissan Altima in 13 San Diego at the relevant time. (Id.). Regarding prejudice, the Report concluded 14 that even if the alibi witnesses had testified, it is not reasonably probable that the 15 jury would have reached a different outcome. (Id. at 36). Thus, the Report 16 determined that Petitioner had failed to satisfy either Strickland prong, and habeas 17 relief was therefore not warranted. 18 The bulk of Petitioner’s Ground-One objections repeat many of the arguments 19 made in his Traverse and Offer of Proof and are adequately addressed in the Report. 20 However, the Court addresses one matter raised in the Objections. Petitioner 21 attaches to his Objections for the first time a declaration from Marinelli (“Marinelli 22 Declaration”) and asks the Court to “take any action it deems appropriate in light of 23 this declaration.” (Docket No. 81 at 8, 12-14). Respondent contends the declaration 24 should not be considered at this late stage of the proceedings, particularly because 25 Petitioner’s investigator’s explanation of the efforts undertaken to locate Marinelli 26 earlier are wholly lacking. (Docket No. 86 at 18-19). Alternatively, Respondent 27 contends that, even if the Marinelli Declaration is considered, the Report’s 28 recommendation on the Strickland prejudice finding still stands. (Id. at 19). 1 A district court has discretion but is not required to consider evidence or 2 claims presented for the first time in objections to a report. See, e.g., Akhtar v. 3 Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (district court is not required to consider 4 evidence presented for the first time in objections); Lee v. City of Los Angeles, 250 5 F.3d 668, 688 (9th Cir. 2001) (generally, the court must limit its review to the 6 operative pleading). Despite the belated filing, the Court exercises its discretion and 7 considers the Marinelli Declaration, but it does not arrive at a different conclusion 8 from the Report. First, Marinelli’s declaration repeats the offer of proof submitted 9 by counsel, which the Magistrate Judge weighed in the Report. (Docket No. 79 at 10 32-33). Second, as noted, the Report concluded that—even if Marinelli had 11 testified—there is not a reasonable probability that the outcome would have been 12 different. (Id. at 36). Marinelli’s inconsistent statements made him vulnerable to 13 impeachment and credibility challenges, and his testimony regarding seeing 14 Petitioner drive a Nissan Altima—the same vehicle as the shooter in the pertinent 15 time frame—would have bolstered the prosecution’s case. (Id. at 34-36). 16 Accordingly, the Objections are overruled. However, the Court nonetheless 17 finds Ground One sufficiently debatable amongst jurists of reason to warrant a 18 certificate of appealability (“COA”) on that issue. See 28 U.S.C. § 2253(c)(2); Fed. 19 R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Martinez v. 20 Shinn, 33 F.4th 1254, 1261 (9th Cir. 2022) (“At the COA stage, we ask only if the 21 District Court’s decision was debatable.” (internal quotation marks and citation 22 omitted)). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS THEREFORE ORDERED that: 2 (1) the Report is ACCEPTED; 3 (2) the FAP is DENIED; 4 (3) the request for an evidentiary hearing is DENIED; 5 (4) a COA is GRANTED on Ground One, and DENIED as to the remaining 6 || grounds; 7 (5) judgment be entered DISMISSING this action with prejudice. 8 9 * 10 || Dated: November 19, 2025 i 2 4 , Po 1 MICHAEL W. FITZGERALD United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28