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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 GUEORGUI PANTCHEV, ) Case No. 2:17-cv-02807-CJC-JC ) 12 ) ORDER ACCEPTING FINDINGS, Petitioner, ) CONCLUSIONS, AND 13 ) RECOMMENDATIONS OF v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 MICHAEL MARTEL, ) ) 16 ) Respondent. ) 17 ________________________________ 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First 19 Amended Petition for Writ of Habeas Corpus by a Person in State Custody 20 (“Petition”) and all of the records herein, including the June 22, 2020 Report and 21 Recommendation of United States Magistrate Judge (“Report and 22 Recommendation” or “R&R”), and petitioner’s June 30, 2020 Objections to the 23 Report and Recommendation (“Objections”). 24 The Court has made a de novo determination of those portions of the Report 25 and Recommendation to which objection is made. The Court concurs with and 26 accepts the findings, conclusions, and recommendations of the United States 27 Magistrate Judge, and overrules the Objections. Although the Court has 28 1 considered and overruled all of petitioner’s Objections, the Court further addresses 2 certain of petitioner’s Objections below. 3 In his Objections, petitioner again contends that the trial court deprived him 4 of the ability to contest the charges against him by excluding Dr. Shaner’s opinion 5 testimony that petitioner did not author the “hush” e-mails. (Objections at 3-4). 6 As explained at length in the Report and Recommendation (R&R at 24-27), the 7 exclusion of Dr. Shaner’s testimony did not deprive petitioner of the ability to 8 claim that petitioner did not write the “hush” e-mails – petitioner presented this 9 defense through his own testimony and through his counsel’s argument about the 10 discernible differences between the “hush” e-mails and petitioner’s known 11 communications. 12 Relatedly, petitioner also appears to contend that the trial court’s refusal to 13 instruct with a third party culpability instruction did not allow the jury to consider 14 petitioner’s defense that someone other than petitioner sent the “hush” e-mails. 15 (Objections at 4). The record belies this assertion. The evidence adduced at trial 16 regarding Mason’s e-mail and Mason’s possible motive for framing petitioner, 17 together with defense counsel’s argument that someone other than petitioner sent 18 the “hush” e-mails and the jury instructions given permitted the jury to consider 19 whether the prosecution had proven beyond a reasonable doubt that it was 20 petitioner (and not someone else) who had engaged in witness intimidation. See 21 R&R at 33-34 (discussing same). 22 Finally, although petitioner takes issue with the Magistrate Judge’s 23 reasoning for rejecting his claim that he was denied the right to be present during 24 closing arguments (Objections at 4-5), the Court agrees with the Magistrate 25 Judge’s findings, since the record amply establishes that: (1) consistent with 26 Illinois v. Allen, 397 U.S. 337, 342-43 (1970), petitioner forfeited his right to be 27 present during closing argument by his repeated outbursts at trial; and (2) even if 28 petitioner was erroneously excluded from closing arguments, petitioner has not 2 1 || shown that his absence had a substantial and injurious effect or influence on the 2 || jury’s verdict since the jury had ample opportunity to view and relate to petitioner 3 || throughout trial. See R&R at 45-48 (discussing same). 4 IT IS THEREFORE ORDERED that the Petition is denied, that this action 5 || is dismissed with prejudice and that Judgment be entered accordingly. 6 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 7 || the Judgment herein on counsel for petitioner and respondent. 8 IT IS SO ORDERED. 9 i0 | DATED: July 15. 2020 — Ko Lo —(F 13 HONORABLE CORMAC J. CARNEY 14 UNITED STATES DISTRICT JUDGE

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