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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 GREGORY BERNARD LACY, Case No. 5:19-cv-00583-DDP (KES)

12 Petitioner,

13 v. ORDER ACCE PTING FINDINGS AND

14 J.A. LIZARRAGA, Warden, RECOMMENDATIONS OF UNITED

15 Respondent. STATES MAGISTRATE JUDGE

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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. Further, the Court has engaged in a de novo review of those

20 portions of the Report and Recommendation to which objections have been made. 21 The Court accepts the findings and recommendations of the Magistrate Judge. 22 Respondent objects that, with respect to Counts 4, 5, and 6, Petitioner has not 23 shown prejudice from the constitutional errors described in the Report and 24 Recommendation. (See Dkt. 39 at 5, 14.) On collateral review, however, Respondent 25 has the burden to show harmlessness. See Mays v. Clark, 807 F.3d 968, 980 (9th 26 Cir. 2015). Furthermore, Respondent did not raise this issue before the Magistrate 27 Judge or file any response to Petitioner’s supplemental memorandum, and thus has 28 1 waived the harmless error argument. See Greenhow v. Secretary of Health & Human 2 Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United 3 States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (“We do not believe 4 that the Magistrate Act was intended to give litigants an opportunity to run one 5 version of their case past the magistrate, then another past the district court.”); 6 (Rhodes v. Dittmann, 903 F.3d 646, 664 (7th Cir. 2018) (discussing government’s 7 waiver of harmless error issue). 8 “[R]elief is proper only if the federal court has ‘grave doubt about whether a 9 trial error of federal law had substantial and injurious effect or influence in 10 determining the jury's verdict.’” Davis v. Ayala, 576 U.S. 257, 267–68 (2015), 11 quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks 12 omitted). For the reasons set forth by the Magistrate Judge, that standard has been 13 met with respect to all counts of conviction. Accordingly, the Petition is GRANTED. 14 This matter is REMANDED to the Superior Court of Riverside County for retrial on 15 Counts 1 through 6. 16 17 IT IS SO ORDERED. 18 19 October 26, 2021 20 DATED: ___________________ 21 ____________________________________ 22 Dean D. Pregerson

UNITED STATES DISTRICT JUDGE

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