Case 2:16-cv-05703-JWH-LAL Document 98 Filed 03/10/22 Page 1 of 4 Page ID #:6317

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES ANTHONY LOAIZA, Case No. LACV 16-5703-JWH (LAL) 12 Petitioner, ORDER ACCEPTING REPORT

AND RECOMMENDATION OF

13 v. UNITED STATES MAGISTRATE

JUDGE

14 RAYMOND MADDEN,1 Warden, 15 Respondent. 16 17

18 19 20 21 22 23 24 25 26 1 According to the California Department of Corrections and Rehabilitation’s 27 online inmate locator, Petitioner is now housed at the Richard J. Donovan Correctional Facility. Pursuant to Rule 25(d) of the Federal Rules of Civil 28 Procedure, this Court substitutes Raymond Madden, the current warden at the Richard J. Donovan Correctional Facility, as the proper Respondent. Case 2:16-cv-05703-JWH-LAL Document 98 Filed 03/10/22 Page 2 of 4 Page ID #:6318

1 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 2 Petition, the Magistrate Judge’s Report and Recommendation, Respondent’s 3 Objections and Alternative Request for Evidentiary Hearing, Petitioner’s Response 4 to Request for Hearing, and the remaining record, and it has made a de novo 5 determination. 6 Respondent’s Objections generally lack merit for the reasons stated in the 7 Report and Recommendation. The Court elaborates, however, on several of 8 Respondent’s points presented in the Objections and Alternative Request for 9 Evidentiary Hearing. 10 First, Respondent initially did not dispute the authenticity or accuracy of the 11 911 call transcript presented with the original Petition. (Dkt. 26 at 26.) 12 Nevertheless, in the Objections and Alternative Request for Evidentiary Hearing, 13 Respondent argues that the transcript that Petitioner has presented is slightly 14 different from the transcript that Respondent located in the prosecutor’s file. 15 Specifically, where the transcript that Petitioner presents reflects that Abundis said 16 “a male” (Dkt. 7-3 at 31), the prosecution’s transcript simply reads “males” 17 (Dkt. 87 at 24; Dkt. 89 at 3; Dkt. 89-1 at 2). The Court’s analysis, however, is not 18 materially changed, even if the transcript read “males” instead of “a male.” 19 Second, Respondent suggests that an evidentiary hearing is required, in part, 20 to establish whether trial counsel possessed both the defense and the prosecution 21 versions of the 911 call transcript and, therefore, might have decided that there 22 “was little to be gained” by impeaching Abundis in light of the slight discrepancy 23 between the two versions of the transcript. (Dkt. 89 at 3-4.) The Court is not 24 persuaded. As discussed in the Report and Recommendation, even accepting the 25 prosecution’s version of the transcript, the 911 call is devastating to Abundis’s 26 credibility, and the Court’s analysis would not be altered based upon whether trial 27 counsel possessed one or both of the competing versions of the 911 call transcript. 28 2 Case 2:16-cv-05703-JWH-LAL Document 98 Filed 03/10/22 Page 3 of 4 Page ID #:6319

1 Third, Respondent argues an evidentiary hearing is required to discover 2 whether Petitioner’s trial counsel had a tactical reason for not impeaching Abundis 3 with the 911 call. (Dkt. 89 at 4.) The Court concludes that an evidentiary hearing 4 is not required. There is no reasonable tactical justification for trial counsel’s 5 failure to impeach the prosecution’s key witness with this objective evidence 6 contradicting his trial testimony. See Reynoso v. Giurbino, 462 F.3d 1099, 1112 7 (9th Cir. 2006) (where some facts before the court were not entirely clear, the court 8 did not need to “resolve it—or, as the dissent suggests, remand to the district court 9 to resolve it” where the trial counsel’s failure to impeach key prosecution 10 witnesses cannot under any theory be deemed a “sound trial strategy”). 11 Fourth, Respondent requests an evidentiary hearing to address whether the 12 prosecution failed to disclose the dog scent evidence. (Dkt. 89 at 4.) Yet, despite 13 having access to the prosecution file and presenting the prosecution’s version of 14 the 911 call transcript that Respondent located in that file (Dkt. 87 at 32 n.14; 15 Dkt. 89 at 3, 6; Dkt. 89-1), Respondent still has not presented any evidence 16 establishing that the prosecution disclosed to Petitioner’s defense counsel the dog 17 scent evidence at issue here or otherwise rebutting the declaration from Petitioner’s 18 trial counsel stating that he had no recollection of receiving the evidence. See Hart 19 v. Broomfield, No. CV 05-03633 DSF, 2020 WL 4505792, at *53 (C.D. Cal. 20 Aug. 5, 2020) (“Where the proponent of a Brady claim produces ‘some evidence to 21 support an inference that the government possessed or knew about material 22 favorable to the defense and failed to disclose it,’ the burden shifts to the 23 government to show that all Brady material was turned over.”) (quoting United 24 States v. Price, 566 F.3d 900, 910 (9th Cir. 2009). Accordingly, Respondent has 25 given the Court no reason to believe that further litigation through an evidentiary 26 hearing would uncover evidence of disclosure that up to this point has not been 27 discovered. To the extent that Respondent is reversing the apparent concession in 28 the Answer that the dog scent evidence was not disclosed (see Dkt. 26 at 14-17), 3 Case 4:16-cv-05703-JWH-LAL Document 98 Filed 03/10/22 Page 4of4 Page ID #:6320

1 | the Court’s Brady analysis remains unchanged. As explained in the Report and 2 | Recommendation, the record establishes that that evidence was favorable to 3 | Petitioner, the prosecution failed to disclose it, and the evidence was material. 4 | (Dkt. 75 at 31-39.) 5 Accordingly, it is hereby ORDERED as follows: 6 1. The Report and Recommendation is APPROVED and ACCEPTED. 7 2. Judgment shall be entered granting the First Amended Petition; 8 | directing that a conditional writ of habeas corpus shall be issued; ordering 9 | Respondent to release Petitioner from custody and to discharge him from all 10 | adverse consequences of his conviction in Los Angeles County Superior Court 11 | Case No. KA061553, unless Petitioner is brought to retrial within sixty (60) days 12 | of the date that Judgment becomes final; and directing Respondent to file and to 13 | serve a notice of compliance within sixty (60) days of the date that Judgment 14 | becomes final. 15 3. The Clerk is DIRECTED to serve copies of this Order on the parties. 16 IT IS SO ORDERED. □□ 18 | DATED: March 10, 2022 . 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28