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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 Case No. 5:21-cv-01925-FWS-SHK 11

12 MICHAEL GEORGE BETTASSO, ORDER ACCEPTING FINDINGS, 13

CONCLUSIONS AND

Petitioner, RECOMMENDATIONS OF UNITED 14 STATES MAGISTRATE JUDGE 15 v.

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RICK HILL, ACTING WARDEN,

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18 Respondent.

19 20 21 22 23 24 25 26 27 28 1 I. Introduction and Relevant Procedural History

2 Before the Court is the Magistrate Judge’s July 31, 2023, Report and 3 Recommendation (“Report and Recommendation”), (Dkt. 24), regarding the claims of 4 Petitioner George Michael Bettasso (“Petitioner”), as stated in the Petitioner’s 5 Verified First Amended Petition for Writ of Habeas Corpus by a Person in State 6 Custody under 28 U.S.C. § 2254 ( “Amended Petition”), (Dkt. 14-2). Based on the 7 state of the record, as applied to the applicable law, the court adopts the Report and 8 Recommendation issued by the Magistrate Judge, including each of the findings of 9 fact and conclusions of law therein. 10 On or about November 12, 2021, Plaintiff filed the Verified Petition for Writ of 11 Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 ( “Petition”). 12 (Dkt. 1.) On or about January 30, 2023, the Verified First Amended Petition for Writ 13 of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 became the 14 operative pleading in this matter ( “Amended Petition”). (Dkt. 14-2.) The Amended 15 Petition, in summary, contains the following allegations and grounds: (1) “Petitioner 16 was denied his federal constitutional right to due process under the Fifth, Sixth, and 17 Fourteenth Amendments where vehicular manslaughter is a lesser included offense of 18 murder;” (2) “Petitioner was denied his federal constitutional right to due process 19 under the Fifth, Sixth, and Fourteenth Amendments where the trial court erred by 20 failing to instruct on vehicular manslaughter as a lesser included offense of murder;” 21 (3) “Petitioner was denied his federal constitutional right to due process under the 22 Fifth, Sixth, and Fourteenth Amendments where the People failed to present sufficient 23 evidence to support Petitioner’s second-degree murder conviction;” and (4) 24 “Petitioner was denied his federal constitutional right to due process under the Fifth, 25 Sixth, and Fourteenth Amendments due to the ineffectiveness of trial counsel.” (Dkt. 26 14-2 at 10-12.)1 27 28 1 Unless stated otherwise, the citations to page numbers refer to ECF pagination. 1 On April 28, 2023, Respondent Rick Hill (“Respondent”) filed an Answer to

2 the Amended Petition ( “Answer”). (Dkt. 20.) On May 22, 2023, Petitioner filed a 3 Reply in Support of the Amended Petition ( “Reply”). (Dkt. 23.) 4 On July 31, 2023, the Magistrate Judge filed the Report and Recommendation. 5 (Dkt. 24.) On September 5, 2023, Petitioner filed Objections to the Report and 6 Recommendation ( “Objections”). (Dkt. 28.) 7 II. Analysis 8 “A judge of the court may accept, reject, or modify, in whole or in part, the 9 findings or recommendations made by the magistrate judge.” 28 U.S.C. 10 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must 11 determine de novo any part of the magistrate judge’s disposition that has been 12 properly objected to,” and “[t]he district judge may accept, reject, or modify the 13 recommended disposition; receive further evidence; or return the matter to the 14 magistrate judge with instructions”). Proper objections require “specific written 15 objections to the proposed findings and recommendations” of the magistrate judge. 16 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination of 17 those portions of the report or specified proposed findings or recommendations to 18 which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna- 19 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that the 20 district judge must review the magistrate judge’s findings and recommendations de 21 novo if objection is made, but not otherwise.”). Where no objection has been made, 22 arguments challenging a finding are deemed waived. See 28 U.S.C. § 636(b)(1)(C) 23 (“Within fourteen days after being served with a copy, any party may serve and file 24 written objections to such proposed findings and recommendations as provided by 25 rules of court.”). Moreover, “[o]bjections to a R&R are not a vehicle to relitigate the 26 same arguments carefully considered and rejected by the Magistrate Judge.” Chith v. 27 Haynes, 2021 WL 4744596, at *1 (W.D. Wash. Oct. 12, 2021). 28 1 In the Report and Recommendation, the Magistrate Judge recommends “the

2 District Judge issue an order . . . directing that Judgment be entered denying the 3 Petition and dismissing this action.”2 (Dkt. 24 at 27.) More specifically, the 4 Magistrate Judge states that “[b]ecause Grounds One and Two are not cognizable and 5 because the state court’s rejection of Grounds Three and Four was not contrary to and 6 did not involve an unreasonable application of clearly established Supreme Court law, 7 the Magistrate Judge recommends that the District Judge deny the claims in the 8 Petition with prejudice.” (Id. at 2.) 9 In the Objections, Petitioner responds to the reasons provided by the Magistrate 10 Judge in the Report and Recommendation. (Dkt. 28.) In summary, Petitioner argues: 11 (1) “the state court’s factual determinations are not entitled to deference;” (2) “the trial 12 court erred in failing to instruct the jury on vehicular manslaughter as a lesser 13 included” and “denied Petitioner of the right to present a defense;” (3) “the 14 prosecution failed to present sufficient evidence to sustain [Petitioner’s] convictions;” 15 and (4) “Petitioner has established trial counsel was ineffective.” (Dkt. 28 at 3-4, 8-9.) 16 In this case, after conducting a de novo review of Petitioner’s Objections, the 17 court agrees with each of the findings of fact and conclusions of law set forth in the 18 Report and Recommendation, including the recommendations that “the District Court 19 issue an Order: (1) [a]pproving and accepting this Report and Recommendation; and 20 (2) directing that Judgment be entered denying the Petition and dismissing this action 21 with prejudice.” (Dkt. 24 at 27.) Accordingly, the Objections are OVERRULED on 22 their merits. 23 In sum, pursuant to 28 U.S.C. § 636, the Court has reviewed the record, 24 including the Report and Recommendation, the Amended Petition, the Answer, the 25 Reply, the Objections, and the other records of the case. After conducting a de novo 26

27 2 The court construes all references to “Petition” in the Report and Recommendation 28 as referring to the Amended Petition, the operative pleading in this matter. 1 | determination of the portions of the Report and Recommendation to which the 2 | Objections pertain, the Court concurs with and accepts the findings and conclusions of 3 | the Magistrate Judge in the Report and Recommendation. 4 II. Conclusion 5 Based on the state of the record, as applied to the applicable law, the Court 6 | adopts the Report and Recommendation, including each of the findings of fact and 7 | conclusions of law therein. Accordingly, the Court DISMISSES THE AMENDED 8 | PETITION WITH PREJUDICE. 9 10 IT IS SO ORDERED. 1] 12 Lo LS /— 13 | Dated: September 19, 2023 Hon. Fred W. Slaughter 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28