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

IK SOO JEON, ) NO. CV 17-6383-JFW (AGR)

) 12 Petitioner, ) ) 13 v. ) ) ORDER ACCEPTING FINDINGS 14 MARTIN FRINK, Warden, ) AND RECOMMENDATION OF ) MAGISTRATE JUDGE 15 Respondent. ) ) 16 ) ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 19 records on file herein, the Report and Recommendation of the United States 20 Magistrate Judge (“Report”) and the Objections. Further, the Court has engaged 21 in a de novo review of those portions of the Report and Recommendation to 22 which objections have been made. The Court accepts the findings and 23 recommendation of the Magistrate Judge. 24 In Ground One, Petitioner argued the trial court erred by allowing the 25 prosecution to argue that any bone fracture automatically qualified as a great 26 bodily injury during closing arguments. Petitioner again objects that the 27 prosecution misled the jury into believing that all bone fractures are great bodily 28 injuries. (Dkt. No. 49 at 4.) Petitioner has not shown that the prosecution’s 1 comments so infected the trial with unfairness as to make the resulting conviction 2 a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). The Report 3 explained that the prosecution did not manipulate or misstate the evidence, but 4 permissibly argued that evidence of the victim’s injuries supported a finding of 5 great bodily injury. Report at 10; Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 6 1996) (“Counsel are given latitude in the presentation of their closing arguments, 7 and the courts must allow the prosecution to strike hard blows based on the 8 evidence presented and all reasonable inferences therefrom.”). A prosecutor 9 may argue reasonable inferences from evidence in the record. United States v. 10 Young, 470 U.S. 1, 8 n.5 (1985). Petitioner also fails to acknowledge that the trial 11 court gave a curative instruction and that the weight of the evidence against him 12 was strong, thereby diminishing the chances that the comments so infected the 13 trial with unfairness as to make the resulting conviction a denial of due process. 14 Darden v. Wainwright, 477 U.S. 168, 181-82, 196 (1986). 15 In his objections, Petitioner further argues that he was not permitted to 16 have an expert provide a second opinion about whether or not the evidence 17 established the great bodily injury allegation. Petitioner contends that the jury 18 made its determination after only hearing from a “single-sided witness in the 19 prosecution[’]s favor.” (Dkt. No. 49 at 3.)1 Petitioner’s argument that the trial 20 court excluded a defense medical expert is unsupported by the record. The 21 transcript pages he cites address an expert who allegedly retrieved information 22 from Petitioner’s cell phone. (Obj. at 3 (citing Exh. II to Petition, RT 322:18- 23 324:16, 601:24-602:8, 603:14-23, 604:5-16, 607:16-28, 608:7-13, 610:22-28.) 24 Moreover, Petitioner does not identify any argument about the medical evidence 25 that is not cumulative, and his claims about what a medical expert might have 26 27 1 It does not appear that Petitioner exhausted this claim before the California Supreme Court. Nonetheless, the Court exercises its discretion to 28 consider the new claim because it is clearly without merit. 1 said at trial is mere speculation. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2 2000) (rejecting claim when petitioner provided “no evidence that [the] witness 3 would have provided helpful testimony for the defense-i.e., [petitioner] has not 4 presented an affidavit from [the] alleged witness.”). 5 Petitioner objects to Dr. Najand’s testimony that the victim sustained 6 multiple fractures and broken bones, which, he contends, was contradicted by 7 CT-Scans and other evidence in Exhibit AA to the Petition. Petitioner appears to 8 contend that evidence was not introduced to undermine the prosecution’s case 9 concerning the victim’s injuries. (Obj. at 5.) However, the record indicates that 10 defense counsel cross examined Dr. Najand and inquired about some of the 11 injuries that Dr. Najand alleged the victim sustained, including the bone fractures, 12 in an ultimate attempt to undermine the prosecution’s theory concerning how the 13 injuries occurred, as well as the extent and severity of those injuries. (RT at 926- 14 31.) The jury was able to assess Dr. Najand’s credibility. Petitioner is unable to 15 establish a due process violation from the admission of Dr. Najand’s testimony. 16 Petitioner's remaining objections are without merit. 17 IT THEREFORE IS ORDERED that judgment be entered denying the 18 Petition and dismissing this action with prejudice. 19 20 DATED: June 2, 2020 KE WL 22 DHN F. WALTER Atmiige States District Judge 23 24 25 26 27 28