1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:21-cv-09283-SPG (ADS) 11 VALENTIN QUINTERO,

12 Petitioner, ORDER ACCEPTING FINDINGS AND

RECOMMENDATIONS OF UNITED

13 v. STATES MAGISTRATE JUDGE

14 WARREN L. MONTGOMERY,

15 Respondent.

16

17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, 20 and the Report and Recommendation (“R&R”) of the United States Magistrate Judge. 21 (ECF No. 37 (“Rep.”)). Further, the Court has engaged in a de novo review of those 22 portions of the Report to which objections have been made. 23 From its de novo review, the Court finds Petitioner’s Objections to the R&R (ECF 24 No. 38) do not warrant a change to the Magistrate Judge’s findings or recommendation, for 25 the following reasons. 26 Petitioner objects that he is actually innocent of the crimes of conviction. (ECF No. 27 38 at 1–3). He argues that three prosecution witnesses contradicted each other, that he 28 testified he was not present at the crime scene, and that some of the evidence placing him 1 at the crime scene was manufactured. (Id. at 2–3). These arguments, which are challenges 2 to the evidence presented at trial, do not satisfy Petitioner’s extraordinarily high evidentiary 3 burden, which requires new evidence of innocence that was not presented at trial. See 4 Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc) (“Requiring affirmative 5 proof of innocence is appropriate, because when a petitioner makes a freestanding claim of 6 innocence, he is claiming that he is entitled to relief despite a constitutionally valid 7 conviction.”). 8 Petitioner objects that he was denied his right to represent himself at trial under 9 Faretta v. California, 422 U.S. 806 (1975). (ECF No. 38 at 4–5). However, the trial court 10 properly denied Petitioner’s requests for self-representation because the requests were 11 untimely and because of concerns about Petitioner’s history of disruptive behavior in court. 12 (Rep. at 21–22.) 13 Petitioner objects that his trial counsel was ineffective by presenting “absolutely no 14 defense.” (ECF No. 38 at 1.) This objection is contrary to the record, which establishes 15 that trial counsel “argued there was no physical evidence to support the charge in his 16 opening statement, cross examined the witnesses, made objections at trial, and argued the 17 prosecutor did not prove his case in his closing argument.” (Rep. at 28–29) (internal 18 citations omitted). 19 Petitioner objects that he was denied his constitutional right to confront three 20 witnesses: J.R., M.S., and A.W. (ECF No. 38 at 5.) However, J.R.’s out-of-court remark 21 to an acquaintance was not a testimonial statement subject to the Confrontation Clause, 22 and M.S. and A.W. were in fact available for cross-examination. (Rep. at 25–26.) 23 Although Petitioner objects that the witnesses were not adequately impeached (ECF No. 24 38 at 5), this does not establish a violation of his confrontation right. See Delaware v. 25 Fensterer, 474 U.S. 15, 20 (1985) (“Generally speaking, the Confrontation Clause 26 guarantees an opportunity for effective cross-examination, not cross-examination that is 27 effective in whatever way, and to whatever extent, the defense might wish.”) (emphasis in 28 original). Finally, Petitioner requests an evidentiary hearing on his claims. (ECF No. 38 at 6.) 2 || However, an evidentiary hearing is unwarranted because the existing state court record 3 ||precludes federal habeas relief. See Cullen v. Pinholster, 563 U.S. 170, 183 (2011) 4 hen the state court-record ‘precludes habeas relief’ under the limitations of § 2254(d), 5 ||a district court is ‘not required to hold an evidentiary hearing.’”) (quoting Schriro v. 6 || Landrigan, 550 U.S. 465, 474 (2007)); see also Totten v. Merkle, 137 F.3d 1172, 1176 (9th 7 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by 8 ||reference to the state court record.”) (emphasis in original). 9 For all the foregoing reasons, as well as the reasons set forth in the R&R, 10 || IT IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is 11 || accepted and adopted; (2) Petitioner’s request for an evidentiary hearing is denied; and (3) 12 || Judgment shall be entered denying the Petition and dismissing this action with prejudice. 13 14 || DATED: November 27, 2023 jp-2 15 ON. SHERILYN PEACE GARNETT 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28