Case 8:21-cv-02045-DMG-PD Document 18 Filed 03/23/23 Page 1 of 3 Page ID #:5385

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID STEVEN ORTEGA, Case No. CV 21-02045-DMG (PD)

12 Petitioner,

ORDER ACCEPTING REPORT

13 v.

AND ADOPTING FINDINGS,

14 WARREN L. MONTGOMERY, CONCLUSIONS, AND Warden, RECOMMENDATIONS OF 15 UNITED STATE Respondent. 16 MAGISTRATE JUDGE, AND

DENYING CERTIFICATE OF

17 APPEALABILITY

18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 20 on file, the Report and Recommendation of United States Magistrate Judge 21 (“Report”), and Petitioner’s Objections to the Report. The Court has engaged in a de 22 novo review of those portions of the Report to which Petitioner has objected. The 23 Court accepts the Report and adopts it as its own findings and conclusions. 24 To the extent Petitioner argues in the Traverse and Objections that the trial 25 court erred by admitting evidence of cell phone calls between Shannon Williams and 26 Tony Tapia, see Dkt. 12 at 13; Dkt. 17-1 at 1-2, Petitioner’s arguments lack merit for 27 28 Case 8:21-cv-02045-DMG-PD Document 18 Filed 03/23/23 Page 2 of 3 Page ID #:5386

1 the same reasons, as explained in the Report and Recommendation, that his other 2 arguments regarding the admission of evidence lack merit. 3 In addition, it appears Petitioner raises two new claims or arguments in the 4 Objections, i.e., the trial court should have issued a clarifying instruction on first 5 and second degree murder as they relate to the special circumstance allegation, see 6 Dkt. 17 at 12-13, and the evidence was insufficient to support Petitioner’s first 7 degree murder conviction, generally, as opposed to the gang-murder special 8 circumstance allegation, specifically, see Dkt. 17-1 at 5-6. The Court has discretion, 9 but is not required, to consider evidence or claims presented for the first time in 10 objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 11 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). 12 Although Petitioner is pro se, he nevertheless had the opportunity to include all of 13 his allegations at an earlier time but failed to do so. Moreover, Petitioner’s claims 14 are not novel claims. See Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013) (finding 15 district court abused its discretion to the extent it declined to consider new claim 16 raised in objections to report and recommendation where petitioner was pro se and 17 raised “a novel claim in an unsettled area of law”). Nevertheless, the Court has 18 considered Petitioner’s arguments and find they lack merit. 19 Preliminarily, Petitioner’s apparent arguments are unexhausted, as he did 20 not present them for review by the California Supreme Court, see Dkt. 9-32. See 21 Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per 22 curiam) (to exhaust a ground for relief, the petitioner must fairly present that 23 ground to the state’s highest court, describing the operative facts and legal theory, 24 and give that court the opportunity to address and resolve the ground). The Court 25 rejects the claims on the merits, however, because they are not colorable. See 26 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an 27 unexhausted petition on the merits only when it is perfectly clear that the applicant 28 does not raise even a colorable federal claim.”).

2 Case 8:21-cv-02045-DMG-PD Document 18 Filed 03/23/23 Page 3of3 Page ID #:5387

1 The record does not support Petitioner’s argument that the trial court was 2 || obligated to issue a clarifying instruction in response to the jury’s question regarding 3 || its consideration of the murder charges against Petitioner. Although the jury 4 || initially sought the trial court’s guidance with respect to its consideration of the 5 || murder charges, the jury followed that request with a note that it had been able to 6 || reach a verdict. Volume 7 Clerk’s Transcript at 1459, 1461; Volume 13 Reporter’s 7 || Transcript at 2677. Thus, the jury no longer required the trial court’s guidance and 8 || the trial court did not err by failing to issue a clarifying instruction. In addition, the 9 || evidence presented at trial, and discussed throughout the Report and 10 || Recommendation, was sufficient for a rational juror to find beyond a reasonable 11 |} doubt that Petitioner was guilty of first degree murder. See Jackson v. Virginia, 4438 12 || U.S. 307, 319, 99S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (question on federal habeas 13 || review for sufficiency of the evidence “is whether, after viewing the evidence in the 14 || light most favorable to the prosecution, any rational trier of fact could have found 15 |} the essential elements of the crime beyond a reasonable doubt’). 16 Accordingly, the Petition is dismissed with prejudice. 17 Further, for the reasons stated in the Report and herein, the Court finds that 18 |} Petitioner has not made a substantial showing of the denial of a constitutional right, 19 || and therefore a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2); 20 || Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 21 22 | DATED: March 23, 2023 □ An. Aaa 24 DOLLYM#enCtCtC 25 UNITED ATES DISTRICT JUDGE 26 27 28