1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN THOMAS MATHEIS, Case No. 5:19-cv-01221-FLA (PVC) 12 Petitioner, ORDER: (1) ACCEPTING

FINDINGS, CONCLUSIONS AND

13 v. RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

14 MARCUS POLLARD, Acting Warden, JUDGE; AND (2) DENYING

PETITIONER’S MOTION FOR

15 Respondent. RELIEF (Dkt. 42) 16 17 Pursuant to 28 U.S.C. § 636, the court has reviewed Petitioner’s First 18 Amended Petition (“FAP”), all the records and files herein, the Report and 19 Recommendation of the United States Magistrate Judge (the “Report and 20 Recommendation”), Petitioner’s Objections to the Report (the “Objections”), 21 Respondent’s Reply to Petitioner’s Objections, and Petitioner’s Rebuttal to 22 Respondent’s Reply.1 After having made a de novo determination of the portions 23 of the Report and Recommendation to which the Objections were directed, the 24 25 1 Petitioner’s Rebuttal is procedurally improper because neither Fed. R. Civ. P. 26 72(b) nor the Local Rules authorize a rebuttal brief to an opposing party’s reply following the filing of objections to a Report and Recommendation. However, 27 because the arguments raised in the Rebuttal largely echo those set forth in 28 Petitioner’s Motion for Relief from Nondispositive Pretrial Order of Magistrate 1 court concurs with and accepts the findings and conclusions of the Magistrate 2 Judge. 3 The court has also considered Petitioner’s Motion for Relief from 4 Nondispositive Pretrial Order of Magistrate Judge (“Motion for Relief”), which was 5 filed concurrently with the Objections. Dkt. 42. The Motion for Relief challenges, 6 in part, the Magistrate Judge’s June 19, 2020 Order denying Petitioner’s motions 7 for discovery, an evidentiary hearing, and appointment of counsel. Dkt. 37. To that 8 extent, the Motion for Relief may be construed as objections to a non-dispositive 9 order of a Magistrate Judge under Fed. R. Civ. P. 72(a). The Motion for Relief 10 also specifically challenges the Magistrate Judge’s recommendation that 11 Petitioner’s ineffective assistance of counsel claim in ground five of the FAP be 12 denied as speculative. Accordingly, the Motion for Relief may also be construed as 13 objections to the Report and Recommendation under Fed. R. Civ. P. 72(b). 14 When construed under Rule 72(a) as objections to a non-dispositive ruling, 15 the Motion for Relief is untimely. Objections to a Magistrate Judge’s non- 16 dispositive order must be filed within fourteen days. Fed. R. Civ. P. 72(a). The 17 Magistrate Judge’s Order issued on June 19, 2020. Petitioner constructively filed 18 the Motion for Relief on November 11, 2020, almost five months later, and has not 19 attempted to explain his delay. As such, the Motion for Relief is untimely under 20 Rule 72(a) and must be DENIED on that ground. See Fed. R. Civ. P. 72(a) (“A 21 party may not assign as error a defect in the [Magistrate Judge’s] order not timely 22 objected to.”). 23 Additionally, even if the court were to consider the Motion for Relief on its 24 merits under Rule 72(a), the motion still fails. As the Magistrate Judge explained in 25 denying Petitioner’s underlying motions, because the habeas claims he seeks to 26 develop were adjudicated on their merits in state court, pursuant to 28 U.S.C. 27 § 2254(d), adjudication of those claims in federal court is limited to the record 28 presented to the state courts. Dkt. 37 at 10–18. Discovery, an evidentiary hearing, 1 and the appointment of counsel to conduct those proceedings on Petitioner’s behalf 2 would be futile because even if Petitioner were able to develop relevant evidence, 3 he would not be able to use it to support his claims as the evidence was never 4 presented in the state courts. Dkt. 37 at 10. As a result, Petitioner’s renewed 5 requests for discovery, an evidentiary hearing, and the appointment of counsel are 6 DENIED in the alternative under Rule 72(a). 7 The Motion for Relief also fails if it is construed under Rule 72(b) as 8 objections to the Magistrate Judge’s Report and Recommendation. It appears 9 Petitioner raises a global objection to the Report and Recommendation in its 10 entirety, Dkt. 42 at 1, which fails for lack of specificity. See Fed. R. Civ. P. 11 72(b)(2) (“[A] party may serve and file specific written objections to the proposed 12 findings and recommendations” of a Magistrate Judge (emphasis added)); Thomas 13 v. Arn, 474 U.S. 140, 149 (1985) (“[28 U.S.C. § 636(b)(1)(C)] does not on its face 14 require any review at all, by either the district court or the court of appeals, of any 15 issue that is not the subject of an objection.” (emphasis added)). 16 To the extent Petitioner challenges the Magistrate Judge’s recommendation 17 as to ground five under Rule 72(b), the Motion for Relief also fails on de novo 18 review. Petitioner appears to make two arguments relating to ground five: first, in 19 the FAP, Petitioner argues his trial counsel was ineffective for failing to investigate 20 the mental health records of jailhouse informant “Erick J.” for impeachment 21 evidence. Dkt. 12 at 27. Second, in his Motion for Relief, Petitioner appears to 22 contend that various parties, including the District Attorney, have improperly 23 denied him access to Erick J.’s mental health records. In support of this claim, 24 Petitioner attaches to his Motion for Relief copies of: (1) correspondence from the 25 District Attorney’s Office to Petitioner in 2017 outlining the procedures for 26 obtaining post-conviction discovery; (2) Petitioner’s letter to the District Attorney’s 27 Office dated September 28, 2020, in which Petitioner asks for copies of Erick J.’s 28 mental health files; and (3) correspondence between Petitioner and his criminal 1 defense counsel in 2017, reflecting that Petitioner requested, and evidently 2 received, Petitioner’s criminal case file. Dkt. 42 at 13–21. Last, Petitioner’s 3 Rebuttal to Respondent’s Reply includes, for the first time, a declaration from an 4 inmate named Rogelio Cabrera who states he saw jailhouse informant “Eric Jones” 5 receive “medication at the pill call window at least three times a day” and heard Mr. 6 Jones complain that the psychotropic drugs he was taking “were not working.” 7 Dkt. 44 at 5. 8 First, Petitioner fails to show that his trial counsel’s failure to investigate 9 Erick J.’s mental health records amounts to ineffective assistance of counsel. To 10 succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate 11 both (1) counsel’s performance was deficient by falling below an “objective 12 standard of reasonableness,” and (2) that the deficient performance prejudiced the 13 defense, meaning there “is a reasonable probability that, but for counsel’s 14 unprofessional errors, the result of the proceeding would have been different.” 15 Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). 16 The Report and Recommendation notes that Petitioner contended, “without 17 support, that Erick J. had been prescribed ‘psychotropic drugs’ at the time of the 18 trial and had a ‘history of severe mental problems.’” Dkt. 43 at 35 (citing FAP at 19 27). The Magistrate Judge recommended ground five be denied because Petitioner 20 put forth no evidence Erick J. suffered any mental health defects at the time of trial 21 that would have impaired his ability to testify competently and truthfully, therefore 22 “any prejudice is entirely speculative.” Dkt. 43 at 35–36 (citing, inter alia, 23 Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008)). 24 This court agrees with the analysis of the Report and Recommendation. 25 While the untimely hearsay declaration of Rogelio Cabrera in Petitioner’s Rebuttal 26 suggests that mental health records for Erick J. may currently exist, Petitioner has 27 28 1 not shown any such records existed at the time of his trial.2 Petitioner’s trial 2 counsel also conducted a reasonable cross-examination of Erick J. regarding his 3 criminal history, including a prior conviction for lying to the police; his former 4 gang membership and nickname “Evil”; his motivation for cooperating with the 5 police and the specifics of his agreement with the prosecution to testify at 6 Petitioner’s trial; his meetings with prosecutors; and discrepancies in his testimony. 7 Dkt. 32-9 at 51–85. Erick J. admitted on cross-examination that he has been 8 “willing to do dishonest things to get by.” Dkt. 32-9 at 82. Even assuming 9 Petitioner’s counsel could have impeached Erick J. with mental health records that 10 existed at the time of trial, Petitioner fails to show prejudice. See Passalacqua v. 11 McDonald, 650 F. App’x 374, 375 (9th Cir. 2016) (noting “relatively minor or 12 speculative impeachment evidence” about medication for mental illness arguably 13 did not prejudice the defense when defense counsel had vigorously cross-examined 14 the witness); Davis v. Woodford, 384 F.3d 628, 641–42 (9th Cir. 2004) (defense 15 counsel’s failure to impeach prosecution witness about a past conviction did not 16 prejudice the outcome of the trial where counsel impeached the witness on other 17 grounds, since the jury was already “on notice” that the credibility of the witness 18 was at issue). 19 Second, the new claim related to ground five in Petitioner’s Motion for 20 Relief appears to be that the prosecutor, as opposed to his counsel, failed to provide 21 Erick J.’s mental health records in violation of his rights. Dkt. 42 at 1–2. This 22 claim fails procedurally because it does not appear in the FAP and is not exhausted. 23 See 28 U.S.C. § 2254(b)(1)(A), (c). It also fails on the merits. While exhibits 24 attached to Petitioner’s Motion for Relief show Petitioner asked the District 25 26 2 Because ground five was decided on the merits in state court, this court’s consideration of that claim is limited to the evidence before the California Supreme 27 Court. 28 U.S.C. § 2254(d). Accordingly, Petitioner’s correspondence with the 28 District Attorney’s Office and his counsel, and Mr. Cabrera’s declaration, do not 1 |} Attorney’s Office for Erick J.’s medical and mental health files, it does not follow 2 || that the prosecutor in fact possessed any such files or wrongfully withheld them. 3 || Further, there is no violation of Brady v. Maryland, 373 U.S. 83 (1963) when the 4 || evidence is equally available to the defense. See Diep v. Cate, 749 F. App’x 534, 5 || 536 (9th Cir. 2018) (finding no Brady violation for failure to turn over evidence 6 || that “was equally and readily available to defense counsel’); see also United States 7 || v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (“When ... a defendant has enough 8 || information to be able to ascertain the supposed Brady material on his own, there is 9 || no suppression by the government.” (citations omitted)). 10 Accordingly, the court DENIES the Motion for Relief when construed as 11 || objections to the Report and Recommendation under Rule 72(b). 12 IT IS ORDERED that the First Amended Petition is DENIED and Judgment 13 || shall be entered dismissing this action with prejudice. 14 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 15 || the Judgment herein on Petitioner and on counsel for Respondent. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 || Dated: February 8, 2021 eh 20 United States District hudge 21 22 23 24 25 26 27 28