1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE GONZALEZ, Case No. CV 19-5318 DSF (PVC)

12 Petitioner,

ORDER ACCEPTING FINDINGS,

13 v. CONCLUSIONS AND

RECOMMENDATIONS OF UNITED

14 R. C. JOHNSON, Warden, STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records 18 and files herein, the Report and Recommendation of the United States Magistrate Judge, 19 and Petitioner’s Objections. After having made a de novo determination of the portions of 20 the Report and Recommendation to which Objections were directed, the Court concurs 21 with and accepts the findings and conclusions of the Magistrate Judge. 22 23 In his Objections, Petitioner requests an evidentiary hearing. Section 2254(e)(2), 24 which governs evidentiary hearings under AEDPA, provides in relevant part that when a 25 habeas petitioner failed to develop the factual basis of a claim in state court, a federal 26 district court may not hold an evidentiary hearing unless the claim relies on a new rule of 27 constitutional law made retroactive on collateral review or is based on a factual predicate 28 that could not have been previously discovered through the exercise of due diligence, and 1 “the facts underlying the claim would be sufficient to establish by clear and convincing 2 evidence that but for constitutional error, no reasonable factfinder would have found the 3 applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). However, if a state 4 court adjudicated the prisoner’s claim on the merits, the Supreme Court instructs that 5 habeas review is “limited to the record that was before the state court that adjudicated the 6 claim on the merits.” Pinholster, 563 U.S. at 181. “[E]vidence later introduced in federal 7 court is irrelevant to §2254(d)(1) review.” Id. at 184. 8 9 Petitioner does not attempt to identify any specific facts that he was unable to 10 develop in state court that would warrant an evidentiary hearing under § 2254(e)(2). 11 Instead, he argues that certain facts long known to him, such as his hearing impairment, 12 were not presented to the jury. However, even if Petitioner had identified new facts he 13 was unable to develop in state court, to the extent that the Petition contains any claims 14 cognizable on federal habeas review, they were adjudicated on the merits in state court. 15 Accordingly, review of those claims is limited to the state court record. Finally, even if 16 Petitioner’s claims had not been adjudicated on the merits, an evidentiary hearing would 17 be unnecessary because the instant claims are all resolvable on the current record. See 18 Cook v. Kernan, 948 F.3d 952, 971 (9th Cir. 2020) (“If the record contains a sufficient 19 factual basis that ‘refutes the applicant’s factual allegations or otherwise precludes habeas 20 relief, a district court is not required to hold an evidentiary hearing.’”) (quoting Schriro v. 21 Landrigan, 550 U.S. 465, 474 (2007)); see also Downs v. Hoyt, 232 F.3d 1031, 1041 (9th 22 Cir. 2000) (“[T]he fact that a hearing would be permitted does not mean that it is required. 23 The district court retains discretion whether to hold one.”). Accordingly, Petitioner’s 24 request for an evidentiary hearing is denied. 25 26 IT IS ORDERED that the Petition is denied and Judgment shall be entered 27 dismissing this action with prejudice. 28 1 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 2 || Judgment herein on Petitioner at his current address of record and on counsel for 3 || Respondent. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 || DATED: December 1, 2021 if), y boo, A. Jere 8 Honorable Dale S. Fischer 9 UNITED STATES DISTRICT JUDGE

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