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Diaz v. Covello

United States District Court, Eastern District of California
Nov 27, 2022
2:22-cv-00252-KJM-JDP (HC) (E.D. Cal. Nov. 27, 2022)

Opinion

2:22-cv-00252-KJM-JDP (HC)

11-27-2022

JAVIER LOPEZ DIAZ, Petitioner, v. PATRICK COVELLO, Respondent.


FINDINGS AND RECOMMENDATIONS THAT RESPONDENT'S MOTION TO DISMISS BE GRANTED OBJECTIONS DUE IN FOURTEEN DAYS ECF No. 11

JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

Petitioner Javier Lopez Diaz, a state prisoner proceeding without counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. His petition raises five claims: (1) that there was insufficient evidence that the victim's participation in the sexual acts was impelled by duress; (2) ineffective assistance of trial counsel; (3) the trial court erred when it failed to sua sponte instruct on the lesser included offenses of non-forcible oral copulation with a minor and unlawful sexual intercourse with a minor; (4) California code section 1108 violated Petitioner's due process right to a fair trial by allowing the admission of sexual offenses that are subject to proof by propensity; and (5) CALCRIM No. 1191A allowed jurors to infer guilt of the charged offenses based on propensity, and it confused and mislead the jury about burden of proof. ECF No. 1 at 16-17. Respondent contends that the third claim, failure to give the sua sponte instruction, is unexhausted and must be deleted if the petition is to proceed. ECF No. 11 at 4. Petitioner agrees that the claim is unexhausted and has agreed to delete the claim. ECF No. 19 at 1-2.

It is ORDERED that the Clerk of Court shall substitute Patrick Covello as respondent in this action.

Further, it is RECOMMENDED that respondent's third claim, identified above as the trial court's failure to give sua sponte instructions on lesser included offenses, be dismissed. If these recommendations are adopted, I will set a schedule for respondent to answer the remaining, exhausted claims.

These findings and recommendations are submitted to the U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document must be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The presiding district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

IT IS SO ORDERED.


Summaries of

Diaz v. Covello

United States District Court, Eastern District of California
Nov 27, 2022
2:22-cv-00252-KJM-JDP (HC) (E.D. Cal. Nov. 27, 2022)
Case details for

Diaz v. Covello

Case Details

Full title:JAVIER LOPEZ DIAZ, Petitioner, v. PATRICK COVELLO, Respondent.

Court:United States District Court, Eastern District of California

Date published: Nov 27, 2022

Citations

2:22-cv-00252-KJM-JDP (HC) (E.D. Cal. Nov. 27, 2022)