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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

7 8 PHILIP JONES, ) Case No. CV 13-7792-JWH (JPR) 9 ) Petitioner, ) 10 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 11 ) MAGISTRATE JUDGE KELLY SANTORO,1 Warden, ) 12 ) Respondent. ) 13 ) 14 The Court has reviewed the Second Amended Petition, records 15 on file, and Report and Recommendation of U.S. Magistrate Judge, 16 which recommends that judgment be entered denying the SAP and 17 dismissing the action with prejudice. See 28 U.S.C. § 636(b)(1). 18 Petitioner filed objections to the R. & R. on June 16, 2021; 19 Respondent did not reply. 20 Most of Petitioner’s objections simply reargue points made 21 in his SAP and Traverse. A few warrant discussion, however. To 22 show deficient performance by his trial counsel, he again points 23 to counsel’s testimony during the evidentiary hearing that he did 24 not “investigate a mental state defense.” (Objs. at 2.) As he 25 argues, in many cases that might be “significant.” (Id.) But as 26 the Magistrate Judge pointed out, defense counsel’s testimony 27 28 1 Kelly Santoro is the warden of North Kern State Prison, where Petitioner is housed, and is substituted in under Federal Rule of Civil Procedure 25(d) as the proper Respondent. See also R.2(a), Rules Governing § 2254 Cases in U.S. Dist. Cts. 1 as a whole made clear that he at least somewhat investigated a 2 mental-state defense before reasonably deciding not to pursue the 3 issue further. (See R. & R. at 26-31 (summarizing defense 4 counsel’s evidentiary-hearing testimony); see also id. at 39.) 5 He reviewed all five expert reports then available concerning 6 Petitioner’s mental state and discussed with Petitioner’s mother 7 and girlfriend his mental state immediately before the crimes. 8 (See id. at 27-29.) When Petitioner’s mother mentioned a family 9 history of mental illness, he followed up by asking that she 10 provide him with more information, but she never did. (Id. at 11 28.) And counsel knew from talking to the mother that Petitioner 12 had never been in mental-health treatment and had no medical 13 records concerning it. (Id.) 14 Defense counsel also knew from reading the expert reports 15 that many of Petitioner’s doctors suspected that he was 16 malingering. (See id. at 27-28; see also id. at 36-39.) As the 17 Magistrate Judge explained, he therefore reasonably decided to 18 pursue another defense at trial rather than risk having 19 Petitioner rely entirely on a flawed mental-state one. (See 20 id. at 36-41.) 21 On habeas review, “a federal court may grant relief only if 22 every ‘fairminded juris[t]’ would agree that every reasonable 23 lawyer would have made a different decision.” Dunn v. Reeves, 24 141 S. Ct. 2405, 2411 (2021) (emphasis and alteration in 25 original) (quoting Harrington v. Richter, 562 U.S. 86, 101 26 (2011)). Given the evidence of malingering, Petitioner’s 27 insistence to counsel that he did not commit the crimes (see R. & 28 R. at 26-27, 29), and the reasonableness of an identification 2 1 || defense given many witnesses’ failure to identify Petitioner and 2 || the flaws in the identifications of those who did (see id. at 41- 3} 42), that is clearly not the case here.’ 4 Having reviewed de novo those portions of the R. & R. to 5 || which Petitioner objects, see 28 U.S.C. § 636(b) (1)©, the Court 6 || accepts the findings and recommendations of the Magistrate Judge the R. & R. as well as in the January 19, 2017 order granting 8 stay, which the Court has read. Therefore, Judgment shall be 9 || entered denying the SAP and dismissing this action with 10 || prejudice. 11 IT IS SO ORDERED.

□ 13 || DATED: November 17, 2021

JOHN W. HOLCOMB

14 U.S. DISTRICT JUDGE 15 16 17 18

20 * Petitioner argues that the Magistrate Judge erroneously found that he raised his argument that “the superior court 21 ‘unreasonably determined the facts by inserting its own opinions 22 and recollections into the record’” for the first time in his Traverse and therefore had forfeited it. (Objs. at 3 (citing R. 93], & R. at 44).) He points to a short statement in his SAP complaining about the superior court’s “leading questions” as 24 || preserving the argument. (Id. at 3-4.) But a trial court asking leading questions is not the same thing as it relying on its own actual observations. n any event, as e Magistrate Judge 25 || factual ob ti I t the Magistrate Jud observed, “before the court questioned him, [defense counsel] had testified that he considered the mental-state defense, and he 7 confirmed on redirect that he had weighed both defenses.” (R. & R. at 44 (citation omitted).) Thus, any leading questions and 28 | personal observations did not play a significant role in the state court’s findings. (See also id. at 43-46.)