1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JORGE ALEJANDRO PULIDO Case No. CV ED 22-1215-DMG (GJS)

COLMENERO,

12 Petitioner ORDER ACCEPTING FINDINGS 13 AND RECOMMENDATIONS OF v. UNITED STATES MAGISTRATE 14 JUDGE JAMES ROBERTSON, Warden, 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative habeas 18 petition (“Petition” [Doc. # 1]), all relevant documents filed and lodged in this 19 action, the Report and Recommendation of United States Magistrate Judge 20 (“Report” [Doc. # 20]), and Petitioner’s Objections to the Report [Doc. # 21]. 21 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has 22 conducted a de novo review of those portions of the Report to which objections have 23 been stated. 24 For the reasons stated below, Petitioner’s Objections to the Report do not 25 warrant any change to the Magistrate Judge’s findings and recommendations. 26 Petitioner objects, in relation to Grounds One and Five to Nine, that his right to 27 participate in the selection of his defense was violated under McCoy v. Louisiana, 28 138 S. Ct. 1500 (2018). [Doc. # 21 at 3–4, 6–7.] In McCoy, the Supreme Court 1 “h[e]ld that a defendant has the right to insist that counsel refrain from admitting 2 guilt, even when counsel’s experienced-based view is that confessing guilt offers the 3 defendant the best chance to avoid the death penalty.” 138 S. Ct. at 1505. Petitioner 4 argues that, under McCoy, his federal rights were violated when his defense counsel 5 selected a defense of factual innocence (specifically, third-party culpability) rather 6 than mental defect or insufficient evidence. [Doc. # 21 at 3–4, 6–7.] As the Report 7 discussed, however, Petitioner has not demonstrated his federal rights were violated 8 on this basis. Unlike the defense counsel in McCoy, Petitioner’s defense counsel 9 never conceded Petitioner’s guilt. [Doc. # 20 at 16.] Moreover, unlike the record in 10 McCoy, the record here contains “no indication that Petitioner voiced an opposition 11 to the third-party culpability defense presented at trial.” Id. Indeed, it appears that 12 Petitioner wanted to “present a full-on-I-am-one-hundred-percent-innocent-of-this- 13 crime defense at trial.” [Doc. # 15-6 at 8.] 14 Petitioner objects, in relation to Ground Three, that his defense counsel was 15 ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to 16 present a mental health defense. [Doc. # 21 at 3, 6.] But as the Report found, 17 Petitioner “fails to offer any evidence that a defense based on mental illness would 18 have resulted in a more favorable outcome at trial.” [Doc. # 20 at 19–20.] The 19 record contains no opinion from a mental health expert or any other evidence 20 suggesting that such a defense would have changed the outcome of the trial. Thus, 21 Petitioner’s claim that such a defense would have led to a different trial outcome is 22 “speculative” and “insufficient to establish prejudice” under Strickland. Gallegos v. 23 Ryan, 820 F.3d 1013, 1035 (9th Cir. 2016). 24 Petitioner objects, in relation to Ground Six, that his defense counsel failed to 25 subject the prosecutor’s case to meaningful adversarial testing under United States v. 26 Cronic, 466 U.S. 648 (1984). [Doc. # 21 at 5.] As the Report discussed, however, 27 Petitioner’s claim is not supported by the record, which shows that defense counsel 28 took several steps to challenge the prosecutor’s case throughout the trial, particularly 1 with a defense of third-party culpability. [Doc. # 20 at 17; see also Doc. # 15-3 at 2 237–46, Doc. # 15-7 at 42–72, 77–78, 132–51, 158–59, 174–77, Doc. # 15-8 at 80– 3 97.] Petitioner objects, in relation to Ground Two, that the trial court violated his 4 federal rights by denying his motion for substitution of counsel, which Petitioner 5 had brought on the basis of an “irreconcilable conflict.” [Doc. # 21 at 7.] As a 6 threshold matter, habeas relief is precluded for this claim because of the absence of 7 clearly established federal law. The Supreme Court “has never held that an 8 irreconcilable conflict with one’s attorney constitutes a per se denial of the right to 9 effective counsel.” Carter v. Davis, 946 F.3d 489, 508 (9th Cir. 2019) (per curiam). 10 Moreover, as discussed in the Report, Petitioner failed to show an irreconcilable 11 conflict with his defense counsel, rather than merely a dissatisfaction or 12 disagreement over trial tactics. [Doc. # 20 at 24.] 13 Petitioner objects, in relation to Ground Two, that due to a lack of 14 communication with defense counsel, Petitioner was unaware of a plea offer of 15 15 years to life. [Doc. # 21 at 7.] The record shows, to the contrary, that Petitioner was 16 aware of the plea offer and declined to accept it. [Doc. # 15-6 at 12.] 17 Petitioner objects that the trial court erred in failing to instruct the jury on the 18 lesser included offense of voluntary manslaughter. [Doc. # 21 at 8.] This claim is 19 not cognizable on federal habeas review because it fails to present a federal 20 question. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (per curiam). 21 Having completed its review, the Court accepts the findings and 22 recommendations set forth in the Report. Accordingly, IT IS ORDERED that the 23 Petition is DENIED. Judgment shall be entered dismissing this action with 24 prejudice. 25 DATED: April 22, 2024 _____________________________________

DOLLY M. GEE

26

CHIEF UNITED STATES DISTRICT JUDGE

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