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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9 10 FRANK NATHAN ESCALANTE, )Case No. CV 19-5563-RSWL (JPR) 11 ) Petitioner, ) 12 )ORDER ACCEPTING FINDINGS AND v. )RECOMMENDATIONS OF U.S. 13 )MAGISTRATE JUDGE JIM ROBERTSON, Warden, ) 14 ) Respondent. ) 15 ) 16 The Court has reviewed the Petition, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge. On October 18 15, 2021, Petitioner filed Objections to the R. & R.; Respondent 19 didn’t respond. Although the Objections are largely 20 unintelligible, the Court attempts to address them nonetheless. 21 Petitioner continues to insist that the state court admitted 22 codefendant Akuna’s statements without deciding the “factual 23 existence of a conspiracy to commit murder.” (Objs. at 2; see 24 id. at 4-5.) He is apparently arguing that it didn’t properly 25 admit them under the federal or state coconspirator exception to 26 the hearsay rule. (See R. & R. at 27 & n.14; see also Objs. at 27 3-5 (citing state and federal evidence rules and Carbo v. United 28 States, 314 F.2d 718, 735 n.21 (9th Cir. 1963) (discussing coconspirator exception), and United States v. Ellsworth, 481 1 F.2d 864, 871 (9th Cir. 1973) (same).) But as the Magistrate 2 Judge correctly noted, claims that a state court violated federal 3 or state evidence rules aren’t cognizable on federal habeas 4 review. (See R. & R. at 27; see also id. at 16-17.) In any 5 event, as the Magistrate Judge also observed, the state court 6 didn’t admit the statements under the coconspirator exception. 7 (See id. at 27 (citing 1 Rep.’s Tr. at 36-54).) For that reason 8 and others, Dutton v. Evans, 400 U.S. 74, 88-89 (1970) (plurality 9 opinion), on which Petitioner relies (see Objs. at 3-4), doesn’t 10 apply. 11 Further, the Supreme Court has since held that the 12 constitutional right of confrontation extends only to testimonial 13 statements. (See R. & R. at 29 (citing Crawford v. Washington, 14 541 U.S. 36, 68 (2004); Davis v. Washington, 547 U.S. 813, 821 15 (2006)).) As the Magistrate Judge correctly found, the court of 16 appeal was not objectively unreasonable in concluding that 17 Akuna’s statements weren’t testimonial and thus that their 18 admission didn’t violate the Confrontation Clause. (See id. at 19 37-38.) 20 Petitioner’s next argument fares even worse: the Magistrate 21 Judge should have reviewed grounds one through three under 22 Federal Rule of Criminal Procedure 52(b)’s plain-error standard, 23 not de novo. (See Objs. at 5-6, 11; R. & R. at 14-16.) But 24 plain error applies only on direct appeal and is “out of place” 25 on habeas review. United States v. Frady, 456 U.S. 152, 164 26 (1982). In any event, it’s a more deferential standard than the 27 de novo review the Magistrate Judge engaged in and Petitioner 28 thus couldn’t possibly have been prejudiced. See, e.g., United 2 1 States v. Lindsey, 680 F. App’x 563, 565-66 (9th Cir. 2017). 2 Petitioner states that the Magistrate Judge “ma[de] an 3 astounding effort to not mention . . . [the] jury inquiry about 4 whether finding him not guilty of murder.” (Objs. at 7 (citing 2 5 Clerk’s Tr. at 263-64); see also id. at 10.) During 6 deliberations, the jury asked if “someone [can] be found not 7 guilty of murder [and] gui[l]ty of conspiracy or does it have to 8 be all or none.” (2 Clerk’s Tr. at 263.) The judge responded, 9 “[A] defendant may be found not guilty of murder and guilty of 10 conspiracy.” (Id. at 264.) Petitioner does not explain how the 11 jury’s question or the judge’s answer bears on any of his claims, 12 however, and the Magistrate Judge therefore made no mistake in 13 not discussing the issue.1 14 Finally, Petitioner maintains that he didn’t “freely” waive 15 his right to testify. (Objs. at 9.) That claim appears nowhere 16 in the Petition. Even if the Court could consider habeas claims, 17 as opposed to arguments, raised for the first time in objections 18 to an R. & R., see Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 19 2012); but see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th 20 Cir. 1994) (court need not consider habeas claims raised for 21 first time in traverse), his new claim has not been exhausted in 22 state court and is likely time barred and therefore not 23 appropriate for review, see Marquez-Ortiz v. Sullivan, No. SACV 24 08-552 ABC (FFM), 2012 WL 294741, at *1 (C.D. Cal. Feb. 1, 2012) 25 26 1 Petitioner asserts that the jury inquiry required the 27 state court to give CALJIC 6.24 (see Objs. at 19), contrary to the Magistrate Judge’s finding that the court had no reason to 28 give it (see R. & R. at 23-28). But he doesn’t explain why the jury question required the court to do so. 3 1 || (declining to consider habeas petitioner’s additional claims 2 || raised for first time in objections to report and recommendation 3} in part because they were not exhausted in state court). The court therefore declines to consider it. 5 Having reviewed de novo those portions of the R. & R. to 6 || which Petitioner objects, the Court agrees with and accepts the 7 || findings and recommendations of the Magistrate Judge. IT 8 || THEREFORE IS ORDERED that the Petition is denied and Judgment be 9 entered dismissing this action. 10 fo 11 / . 12 |] parep: November 5, 2021 Karalh AJ Wy Jue

RONALD S.W. LEW

13 U.S. DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28