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

MICHAEL L. LHEVAN, ) NO. SACV 16-01240-GW (AGR)

) NO. SACV 16-01241-GW (AGR) 12 Petitioner, ) ) 13 v. ) ) ORDER ACCEPTING FINDINGS 14 SCOTT KERNAN, 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 Petitions for Writ of Habeas Corpus, the other records on file herein, the Report 20 and Recommendation of the United States Magistrate Judge (“Report”) and the 21 Objections. Further, the Court has engaged in a de novo review of those portions 22 of the Report and Recommendation to which objections have been made. The 23 Court accepts the findings and recommendation of the Magistrate Judge.1 24 Petitioner’s objections are largely unintelligible. It is unclear whether 25 Petitioner’s objections assert new grounds for relief. To the extent that Petitioner 26 27 1 The magistrate judge issued a consolidated Report for both cases. Because the objections in each case are identical, the Order Accepting 28 addresses both cases. 1 wishes to assert additional grounds for relief, there is no indication that any of 2 these claims were previously exhausted in state court. 3 The Court exercises its discretion to consider the new evidence attached 4 to the objections. 5 Petitioner argues that Grounds 5-8 are timely. (Lhevan I, Dkt. No. 93 at 95- 6 96.)2 However, the magistrate judge did not reach the merits of Respondent’s 7 timeliness argument. (Id., Dkt. No. 91 at 6.) 8 In Ground One of the First Amended Petition, Petitioner alleged that the 9 trial court erroneously denied his motion to withdrawal the guilty pleas. (Id., Dkt. 10 No. 64 at 5; Lhevan II, Dkt. No. 62 at 5.) In his objections, Petitioner contends 11 that the pleas were not knowing, voluntary and intelligent because government 12 officials concealed the fact that Petitioner was a victim of identity theft. (Lhevan I, 13 Dkt. No. 93 at 109, 113.) Petitioner attached a police report showing that 14 someone used his name to rent a car from Enterprise Rental Company on June 15 15, 2015. (Id. at 170.) Petitioner was made aware of the identity theft. (Id. at 16 170.) On July 1, 2015, the Orange County Sheriff’s Department issued the police 17 report. (Id.) It is unclear how being a victim of identity theft was related to 18 Petitioner’s decision to enter a plea agreement. Petitioner did not enter the guilty 19 plea until November 17, 2015, well after the identity theft incident. (Lhevan I, Dkt. 20 No. 28-1 at 136-40; Lhevan II, Dkt. No. 26-3 at 110-15; 68-4 at 1-2.) Petitioner 21 does not contend that any threats, misrepresentations or promises made him 22 enter into the agreement. Parker v. North Carolina, 397 U.S. 790, 796 (1970). 23 In Ground Five of the First Amended Petition, Petitioner alleged ineffective 24 assistance of counsel based on failure to file a motion to suppress a police report. 25 26 2 Page citations are to the page and docket numbers generated by the Case Management/Electronic Case Filing (“CM/ECF”) system in the header of 27 the documents for Lhevan v. Kernan, No. CV 16-01240-GW (AGR) (C.D. Cal. 2016) (“Lhevan I”) and Lhevan v. Kernan, No. CV 16-01241-GW (AGR) (C.D. 28 Cal. 2016) (“Lhevan II”). 1 (Lhevan |, Dkt. No. 64 at 11; Lhevan I/, Dkt. No. 62 at 11.) In his objections, 2 Petitioner argues that defense counsel denied him his First Amendment right to 3 appeal “by never sending him [information] about withdrawing [the] plea.” 4 (Lhevan I, Dkt. No. 93 at 135.) Even assuming defense counsel was ineffective, 5 Petitioner is unable to show that he was prejudiced as a result. Petitioner did file 6 a motion to withdraw his pleas in the Superior Court. (Lhevan /, Dkt. No. 28-1 at 7 144-48; Lhevan II, Dkt. No. 26-1 at 144-48.) Petitioner also raised the claim that 8 the trial court erroneously denied his motion to withdraw the guilty plea in the 9 habeas petitions that he filed in state court. (Lhevan / and Lhevan II, Dkt. No. 68- 10 4.) Therefore, Petitioner is unable to show ineffective assistance of counsel. See 11 Strickland v. Washington, 466 U.S. 668, 687-92 (1984) (petitioner must show 12 both deficient performance and prejudice to prevail on an ineffective assistance of 13 counsel claim). 14 Petitioner’s remaining objections are without merit. 15 IT THEREFORE IS ORDERED that judgment be entered denying the First 16 Amended Petition and dismissing these two actions with prejudice. 17 18 44 19 DATED: September 1, 2020 “fry —

GEORGE H. WU

20 United States District Judge 21 22 23 24 25 26 27 28