Opinion
2:18-cv-08467-JLS (SK)
04-14-2022
ALBERT ALEXANDER CHAVEZ, Petitioner, v. STUART SHERMAN, Respondent.
ORDER (1) ACCEPTING REPORT AND RECOMMENDATION TO DENY HABEAS PETITION AND (2) DENYING CERTIFICATE OF APPEALABILITY
HON. JOSEPHINE L. STATON U.S. DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, any relevant records (if necessary), and the attached Report and Recommendation to deny the Petition. Having completed its de novo review of those portions of the Report and Recommendation to which Petitioner has objected, the Court concludes that nothing in the objections materially affects or alters the findings and conclusions set forth in the Report and Recommendation.
Petitioner's “objections” are not at all objections to the Report and Recommendation. They are instead new claims alleging a violation of Brady v. United States, 397 U.S. 742 (1970), and cumulative error. (ECF 32 at 16-18). The Court has no obligation to consider new claims not raised in the Petition. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). In any event, Petitioner's claims lack merit. The alleged Brady violation, for instance, was essentially the predicate to his claim for ineffective assistance of trial counsel. But as explained in the Report and Recommendation, Plaintiff suffered no prejudice from the lack of more DNA testing to uncover evidence of the elusive suspect, “Jose Ponce.” See also Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (Petitioner “is required to do more than merely speculate” about potentially favorable and material evidence to state Brady claim.). And his cumulative error claim warrants no relief because he failed to show any individual errors at trial. See United States v. Audette, 923 F.3d 1227, 1241 (9th Cir. 2019).
The Court therefore concurs with and accepts the findings and conclusions in the Report and Recommendation. The Court also finds, for the reasons stated in the Report and Recommendation, that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
THEREFORE, IT IS ORDERED that the Petition be DENIED, and that Judgment be entered dismissing this action with prejudice. IT IS FURTHER ORDERED that Petitioner's application for a certificate of appealability be DENIED.
IT IS SO ORDERED.