1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11

JOHNNY LOUIS RAMIREZ, ) NO. EDCV 15-2054-VAP (AGR)

) 12 Petitioner, ) ) 13 v. ) ) ORDER ACCEPTING FINDINGS 14 CLARK E DUCART, Warden, ) AND RECOMMENDATION OF ) MAGISTRATE JUDGE 15 Respondent. ) ) 16 ) ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 19 Petition for Writ of Habeas Corpus, the other records on file herein, the Report 20 and Recommendation (“Report”) of the United States Magistrate Judge and the 21 Objections. Further, the Court has engaged in a de novo review of those portions 22 of the Report to which objections have been made. The Court accepts the 23 findings and recommendation of the Magistrate Judge. 24 Petitioner argues that the Report’s discussion of Ground One is legally 25 incorrect under McCoy v. Louisiana, 138 S. Ct. 1500 (2018). (Report at 17-21.) 26 In McCoy, the Supreme Court held that “a defendant has the right to insist that 27 counsel refrain from admitting guilt, even when counsel’s experience-based view 28 is that confessing guilt offers the defendant the best chance to avoid the death 1 penalty.” Id. at 1505. Petitioner argues that McCoy’s holding supports his 2 contention in Ground One that the trial court improperly denied his Marsden1 3 motions because McCoy now gives the criminal defendant “the right to make the 4 tactical choices” as to what “evidence to present and investigate, and trial 5 strategies to pursue.” (Obj. at 4, 11.) Petitioner misreads McCoy. Contrary to 6 Petitioner’s argument, McCoy makes clear that “[p]reserving for the defendant the 7 ability to decide whether to maintain his innocence should not displace counsel’s, 8 or the court’s, respective trial management roles.” McCoy, 138 S. Ct. at 1509. 9 “Trial management is the lawyer’s province: Counsel provides his or her 10 assistance by making decisions such as ‘what arguments to pursue, what 11 evidentiary objections to raise, and what agreements to conclude regarding the 12 admission of evidence.’” Id. at 1508 (citation omitted); Id. at 1509 (“‘[n]umerous 13 choices affecting conduct of the trial’ do not require client consent, including ‘the 14 objections to make, the witnesses to call, and the arguments to advance’”) 15 (quoting Gonzalez v. United States, 553 U.S. 242, 249 (2008)); see also Carter v. 16 Davis, 946 F.3d 489, 508 (9th Cir. 2019) (noting Supreme Court has never held 17 that irreconcilable conflict with attorney over trial strategy constitutes denial of 18 right to effective counsel). 19 Petitioner argues in his objections that the trial court’s Marsden hearings 20 were deficient. Petitioner contends that the trial court’s inquiry “left many 21 questions unanswered” (Obj. at 11), but the record of the hearings belie his 22 assertion. Petitioner’s citation to United States v. Musa, 220 F.3d 1096 (9th Cir. 23 2000), is inapposite. The court in Musa “made no inquiry at all.” Id. at 1102. 24 In support of Ground Four based on witness identification, Petitioner files a 25 motion to expand the record to include Exhibit 15, consisting of (1) the last page 26 of a police report by S. Barron dated July 23, 2010 indicating Serge identified 27 28 1 People v. Marsden, 2 Cal. 3d 118 (1970). 1 Petitioner in a photographic six-pack with unidentified handwriting; (2) a 2 photographic six-pack with names and numbers underneath each photo and 3 unidentified handwriting; and (3) the last page of a police report by D. Caballero 4 dated July 23, 2010. (Dkt. No. 80 at 4-6.) The photographic six-pack is already 5 attached to the First Amended Petition (“FAP”). (Compare FAP, Dkt. No. 68-3 at 6 35 with Dkt. No. 80 at 5.) The three documents do not alter the analysis in the 7 Report even if they are considered. The Report assumed that police showed the 8 victim, Mr. La Lanne, a suggestive photographic six-pack. (Report at 22.)2 9 Petitioner argues that his case is “in line” with the Supreme Court’s decision in 10 Manson v. Brathwaite, 432 U.S. 98 (1977). Brathwaite involved an identification 11 from a single photograph, which is generally viewed with suspicion. 12 Nevertheless, based on the circumstances, the Supreme Court did not find a 13 substantial likelihood of irreparable misidentification and concluded “such 14 evidence is for the jury to weigh.” Id. at 116; Report at 21-23. 15 Finally, Petitioner complains that the Report’s discussion of Ground Five is 16 incomplete because there is an unnamed witness in Exhibit 6 to the FAP that 17 Petitioner believes is not Mahler or Haire. (Obj. at 16.) Exhibit 6 is a 18 communication from defense counsel to the investigator asking him to listen to 19 the interview he just received of a witness who could not identify Petitioner from a 20 photographic lineup. (Dkt. No. 68-3 at 37.) Petitioner’s belief that the witness is 21 someone who has not been identified is speculative and does not support an 22 ineffective assistance of trial counsel claim. 23 Petitioner’s remaining objections are without merit. 24 25 26 2 Neither Mr. La Lanne nor Officer Barron was questioned about a photographic six-pack at trial. It is unknown whether Mr. La Lanne would testify 27 that he saw a photographic six-pack and, if so, whether he saw the photographic six-pack attached to Petitioner’s motion with names and numbers underneath 28 each photograph. 1 IT THEREFORE IS ORDERED that judgment be entered denying the 2 Petition for Writ of Habeas Corpus and dismissing this action with prejudice. 3 Petitioner's motion to expand the record is denied as unnecessary. 4 5 « DATED: April 17, 2020 Spence eee ee 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28