1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:22-cv-07535-FWS (AS) 11 12 CARLOS ANTHONY HAWTHORNE, ORDER ACCEPTING FINDINGS,

CONCLUSIONS AND

13 Petitioner, RECOMMENDATIONS OF UNITED 14 STATES MAGISTRATE JUDGE 15 v. 16

PAT HORN,1

17 18 Respondent. 19 20 21 22 23 24 25 26 1 Pat Horn, the Acting Warden at California State Prison – Los Angeles County, in 27 Lancaster, California, where Petitioner is currently incarcerated, is substituted for 28 former Warden Raybon Johnson as the proper Respondent. (See Dkt. 16 at 1 n.1). 1 I. Introduction and Relevant Procedural History 2 Before the Court is the Magistrate Judge’s September 15, 2023, Report and 3 Recommendation (“Report and Recommendation”), (Dkt. 28), regarding the claims of 4 Petitioner Carlos Anthony Hawthorne (“Petitioner”), as stated in Petitioner’s Petition 5 for Writ of Habeas Corpus by a Prisoner in State Custody under 28 U.S.C. § 2254 6 (“Petition”), (Dkt. 1). Based on the state of the record, as applied to the applicable 7 law, the court adopts the Report and Recommendation issued by the Magistrate Judge, 8 including each of the findings of fact and conclusions of law therein. 9 On or about October 17, 2022, Petitioner filed the Petition alleging the 10 following fourteen different claims for relief: (1) “The State Prosecuted, Convicted, 11 and Sentenced Mr. Hawthorne While He Was Mentally Incompetent to Stand Trial;” 12 (2) “The State’s Reliance on Mr. Hawthorne’s Illegally Obtained, Unreliable, and 13 Involuntary Statement Violated His Constitutional Rights;” (3) “Mr. Hawthorne Was 14 Deprived of the Right to Effective Assistance of Counsel During the Guilt/Innocence 15 Phase of His Trial;” (4) “Trial Counsel’s Representation Was Prejudicially and 16 Unconstitutionally Burdened by Conflicting Interests;” (5) “The State Engaged in a 17 Pervasive Pattern of Prejudicial Misconduct That Violated Mr. Hawthorne’s 18 Constitutional Rights;” (6) “Juror Misconduct Deprived Mr. Hawthorne of His Right 19 to Be Tried by an Impartial Jury;” (7) “The Prosecutor Unlawfully Exercised 20 Peremptory Challenges Based on Racial and Ethnic Characteristics of the Potential 21 Jurors;” (8) “The Trial Court Improperly Excused Potential Jurors for Cause Based on 22 Their Equivocal Responses Regarding the Death Penalty;” (9) “The Trial Court 23 Violated Mr. Hawthorne’s Constitutional Rights by Instructing the Jury on the 24 Uncharged Crime of First-Degree Felony-Murder Even Though the Information 25 Charged Mr. Hawthorne Only With Second-Degree Malice Murder in Violation of 26 Penal Code Section 187;” (10) The Trial Court Violated Mr. Hawthorne’s “ 27 Constitutional Rights by Failing to Require the Jury to Agree Unanimously on 28 Whether Mr. Hawthorne Had Committed a Premeditated Murder or a Felony Murder 1 Before Finding Him Guilty of First-Degree Murder;” (11) “Mr. Hawthorne’s Due 2 Process Rights Were Violated by the Court’s Use of Outdated and Erroneous Jury 3 Instructions;” (12) “Mr. Hawthorne’s Due Process Right to a Fair Trial Was Violated 4 by the Trial Court’s Failure to Instruct the Jury on the ‘One Continuous Transaction’ 5 Rule in Felony Murder Cases;” (13) “Imposition of Higher Restitution Would Violate 6 the California Constitution;” and (14) “The Cumulative Effect of the Errors Renders 7 Mr. Hawthorne’s Convictions and Sentence Unreliable and Unconstitutional.” (See 8 generally Petition.) 9 On or about March 10, 2023, Respondent Pat Horn, Acting Warden at 10 California State Prison—Los Angeles County, located in Lancaster, California 11 (“Respondent”), filed a Motion to Dismiss Petition for Writ of Habeas Corpus 12 (“Motion to Dismiss”), (Dkt. 16), and lodged documents in support of the Motion to 13 Dismiss (“Documents in Support of the Motion to Dismiss”), (Dkt. 17). 14 On June 12, 2023, Petitioner filed an Opposition to the Motion to Dismiss and 15 Motion to Stay and Abey the Federal Proceedings Pending Exhaustion (“Opposition 16 to Motion to Dismiss and Motion to Stay”), (Dkt. 21). On June 26, 2023, Respondent 17 filed an Opposition to Petitioner’s Motion to Stay (“Opposition to Motion for Stay”), 18 (Dkt. 23), and lodged documents in support of the Opposition to Motion for Stay 19 (“Documents in Support of the Opposition to Motion to Stay”), (Dkt. 24). On July 5, 20 2023, Petitioner filed a Reply in Support of Motion to Stay and Abey the Federal 21 Proceedings Pending Exhaustion (“Reply in Support of Motion to Stay”). (Dkt. 25). 22 On September 15, 2023, the Magistrate Judge filed the Report and 23 Recommendation. (Dkt. 28.). On September 29, 2023, Petitioner filed Objections to 24 the Report and Recommendation ( “Objections”). (Dkt. 29.). 25 II. Analysis 26 “A judge of the court may accept, reject, or modify, in whole or in part, the 27 findings or recommendations made by the magistrate judge.” 28 U.S.C. 28 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must 1 determine de novo any part of the magistrate judge’s disposition that has been

2 properly objected to,” and “[t]he district judge may accept, reject, or modify the 3 recommended disposition; receive further evidence; or return the matter to the 4 magistrate judge with instructions”). Proper objections require “specific written 5 objections to the proposed findings and recommendations” of the magistrate judge. 6 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination of 7 those portions of the report or specified proposed findings or recommendations to 8 which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna- 9 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that the 10 district judge must review the magistrate judge’s findings and recommendations de 11 novo if objection is made, but not otherwise.”). Where no objection has been made, 12 arguments challenging a finding are deemed waived. See 28 U.S.C. § 636(b)(1)(C) 13 (“Within fourteen days after being served with a copy, any party may serve and file 14 written objections to such proposed findings and recommendations as provided by 15 rules of court.”). Moreover, “[o]bjections to a R&R are not a vehicle to relitigate the 16 same arguments carefully considered and rejected by the Magistrate Judge.” Chith v. 17 Haynes, 2021 WL 4744596, at *1 (W.D. Wash. Oct. 12, 2021). 18 In the Report and Recommendation, the Magistrate Judge recommends “that 19 (1) the Motion to Dismiss be granted to the extent it seeks dismissal of the Petition’s 20 unexhausted claims; (2) the Motion for Stay be denied; and (3) Grounds Eleven, 21 Twelve, and Thirteen and part of Ground Fourteen be dismissed without prejudice for 22 lack of exhaustion.” (Dkt. 28 at 2-3.)2 In the Objections, Petitioner “objects to the 23 Report’s conclusions that his unexhausted claims are plainly meritless, and reiterates 24 his request for a stay under Rhines3 so that he can exhaust state remedies.” (Dkt. 29 at 25 2.) In summary, Petitioner argues: Claims Eleven, Twelve, and Thirteen are not 26 27 2 Page numbering in this Order refers to ECF pagination. 28 3 Rhines v. Weber, 544 U.S. 269 (2005) 1 plainly meritless, (see id. at 3-5); the “unexhausted portion of Claim Fourteen is not 2 plainly meritless,” (id. at 5-6); and a stay pursuant to Kelly v. Small, 315 F.3d 1063 3 (9th Cir. 2003) is appropriate, (id. at 5-6). 4 Petitioner also “objects to the presentation of facts in the Report [and 5 Recommendation] to the extent that it contradicts the arguments made in the Petition, 6 the Rhines motion or reply (Dkts. 21, 25), or any other part of the record, or provides 7 an incomplete or misleading picture of the record.” (Id. at 2.) Petitioner “relies on his 8 legal assertions made in all prior pleadings and briefs, incorporating them herein by 9 reference, and objects to the Court’s legal conclusions to the extent they conflict with 10 [Petitioner’s] analyses, particularly those made in his Rhines motion.” (Id. at 3.) 11 In this case, after conducting a de novo review of the Objections, the court 12 agrees with each of the findings of fact and conclusions of law set forth in the Report 13 and Recommendation, including the recommendations that “the district court issue an 14 Order: (1) accepting this Report and Recommendation; (2) granting Respondent’s 15 Motion to Dismiss (Dkt. No. 16) to the extent it seeks dismissal of the Petition’s 16 unexhausted claims; (3) denying Petitioner’s Motion for Stay (Dkt. No. 21); and 17 (4) dismissing without prejudice Grounds Eleven, Twelve, and Thirteen and part of 18 Ground Fourteen (to the extent the claim is predicated on the errors alleged in 19 Grounds Eleven, Twelve, and Thirteen) for failure to exhaust state court remedies.” 20 (Dkt. 28 at 22-23.) Accordingly, the Objections are OVERRULED on their merits. 21 In sum, pursuant to 28 U.S.C. § 636, the Court has reviewed the record, 22 including the Report and Recommendation, the Petition, the Motion to Dismiss, the 23 Documents in Support of the Motion to Dismiss, the Opposition to Motion to Dismiss 24 and Motion to Stay, the Opposition to Motion for Stay, the Documents in Support of 25 the Opposition to Motion to Stay, the Reply in Support of Motion to Stay, the 26 Objections, and the other records of the case. After conducting a de novo 27 determination of the portions of the Report and Recommendation to which the 28 1 | Objections pertain, the Court concurs with and accepts the findings and conclusions of 2 | the Magistrate Judge in the Report and Recommendation. 3 II. Conclusion 4 Based on the state of the record, as applied to the applicable law, the Court 5 | adopts the Report and Recommendation, including each of the findings of fact and 6 | conclusions of law therein. Accordingly, the Court (1) ACCEPTS and ADOPTS the 7 | Report and Recommendation; (2) GRANTS Respondent’s Motion to Dismiss, (Dkt. 8 | 16), to the extent it seeks dismissal of the Petition’s unexhausted claims; (3) DENIES 9 | Petitioner’s Motion for Stay, (Dkt. 21); and (4) DISMISSES WITHOUT 10 | PREJUDICE Claims Eleven, Twelve, and Thirteen in the Petition, and part of Claim 11 | Fourteen (to the extent Claim Fourteen is predicated on the errors alleged in Claims 12 || Eleven, Twelve, and Thirteen) for failure to exhaust state court remedies. 13 Respondent is ORDERED to file an Answer to the remaining claims in the 14 | Petition no later than forty-five (45) days from the date of this Order. IT IS 15 | FURTHER ORDERED that the Clerk serve copies of this Order, the Report and 16 | Recommendation, and the Judgment herein on counsel for Petitioner and counsel for 17 | Respondent. 18 19 IT IS SO ORDERED. 20 21 22 Lo LS /—_\. 33 | Dated: November 7, 2023 Hon. Fred W. Slaughter 24 UNITED STATES DISTRICT JUDGE 25 26 27 28