1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS MARQUEZ, Case No. 5:18-cv-01071-JVS-MAA

12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 SCOTT FRAUENHEIM, Warden, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation of the United States 19 Magistrate Judge. 20 The Court also has reviewed Petitioner’s objections to the Report and 21 Recommendation, which the Court received and filed on November 20, 2020 22 (“Objections”). (Objs., ECF No. 34.) As required by Federal Rule of Civil 23 Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 24 Report and Recommendation to which Petitioner specifically has objected. 25 In his Objections, Petitioner reiterates his claim that the prosecution 26 possessed allegedly exculpatory evidence: Petitioner’s dental impressions, a 911 27 call transcript, and an autopsy report. (Objs. 3.) He argues that the prosecution did 28 1 not introduce this evidence at trial because it would have undermined the case 2 against Petitioner. (See id.) To the extent Petitioner is challenging the sufficiency 3 of the evidence, his Objections lack merit for the reasons stated in the Report and 4 Recommendation: when viewed in the light most favorable to the prosecution, the 5 testimony and evidence presented at trial would permit a rational jury to find 6 Petitioner guilty beyond a reasonable doubt of torturing and murdering Carlos. 7 Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 8 1158, 1164 (9th Cir. 2010). (See Rep. & Recommendation, ECF No. 32, at 22–23.) 9 To the extent Petitioner is arguing the prosecution’s failure to disclose exculpatory 10 evidence violated Brady v. Maryland, 373 U.S. 83 (1963), (see Objs. 5, 9), this 11 claim also fails for the reasons stated in the Report and Recommendation, (see Rep. 12 & Recommendation 28–30). Specifically, the existence of Petitioner’s dental 13 impressions and the autopsy report was known to the defense at the time of the trial, 14 see Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013), and Petitioner 15 raises only speculative allegations that other exculpatory evidence was suppressed, 16 see Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012). Moreover, Petitioner 17 has not shown that the introduction of this evidence would have undermined 18 confidence in the verdict, in light of the inculpatory evidence presented at trial. See 19 Kyles v. Whitney, 514 U.S. 419, 435 (1995). 20 Next, Petitioner argues that his trial lawyer rendered ineffective assistance of 21 counsel for various reasons. (Objs. 4, 6–8, 13.) To the extent Petitioner argues that 22 his trial lawyer was ineffective for failing to call a dental forensic expert to testify 23 (see Objs. 4), this claim fails for the reasons stated in the Report and 24 recommendation (Rep. & Recommendation 23–25). Specifically, Petitioner has not 25 shown that his defense attorney’s failure to call Dr. Golden amounted to deficient 26 performance, as this was a tactical decision based on the attorney’s review of email 27 communications between Dr. Golden and the prosecutor. See Strickland v. 28 1 Washington, 466 U.S. 668, 690 (1984); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 2 (9th Cir. 1997). And Petitioner has not established prejudice because he has not 3 submitted an affidavit from Dr. Golden or other concrete evidence that Dr. Golden 4 would have provided testimony helpful to the defense at trial. See Dows v. Wood, 5 211 F.3d 480, 486–87 (9th Cir. 2000). 6 Petitioner also raises several new ineffective assistance claims. He argues 7 that his trial counsel failed to adequately investigate or prepare for trial, failed to 8 meet with Petitioner and go over discovery with him, failed to introduce 9 exculpatory evidence at trial, failed to exclude a juror during voir dire, 10 inadvertently suggested that the trial court issue a flight instruction, and failed to 11 prevent jurors from viewing Petitioner in his orange jumpsuit. (Objs. 4, 6–8, 13.) 12 He adds that his appellate lawyer was ineffective for failing to raise these issues on 13 appeal. (Id. at 8.) The Court declines to address these claims, as they rely on 14 factual allegations that could have been, but were not, presented in the Petition. See 15 United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000) (district court may 16 decline to consider new factual allegations raised for the first time in objections to a 17 magistrate judge’s recommendation, where such allegations were available before 18 the magistrate’s proceedings ever began). 19 Petitioner also argues that Nancy’s testimony violated his right to a fair trial 20 because this testimony was inflammatory and was not corroborated by other 21 evidence. (Id. at 2–3, 5, 12.) Petitioner raised this claim briefly in his Reply, 22 (Reply, ECF No. 25, at 3–4), but he did not include it in the Petition, (see Pet. 5–7). 23 The Court also declines to consider this new claim. See Delgadillo v. Woodford, 24 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in 25 petitioner’s reply brief are deemed waived.”); Howell, 231 F.3d at 623. 26 Finally, the Court declines to address Petitioner’s new claim that the 27 prosecutor committed misconduct by stating during closing argument that 28 | || Petitioner’s sister Maribel testified that Petitioner’s biting hurt her and that Nancy 2 || was arrested at the hospital. (Objs. 12.) Howell, 231 F.3d at 623. 3 In sum, the Court finds no defect of law, fact, or logic in the Report and 4 || Recommendation. The Court concurs with and accepts the findings, conclusions, 5 || and recommendations of the United States Magistrate Judge, and overrules the 6 || Objections. 7 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 8 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 9 || Petition and dismissing this action with prejudice. 10 11 12 || DATED: December 17, 2020 4 rs 13 | bees VV /

FiRMES V, SEIN GS STRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28