Opinion
NO. CV 14-3788-JAK (AGR)
09-13-2016
CARLOS GALLARDO, Petitioner, v. TIM V. VIRGA,Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendation of the Magistrate Judge.
Petitioner's objections rely on Mitchell v. Prunty, 107 F.3d 1337 (9th Cir. 1997), for the proposition that special findings are dispositive of the questions put to the jury. (Objections at 5-6.) That portion of Mitchell was overruled in Santamaria v. Horsley, 138 F.3d 1280, 1280 (9th Cir. 1998 (en banc) (Mitchell shared "flawed premise that if the jury returned a not true verdict on a weapon enhancement question but also returned a murder conviction, it must have concluded that the defendant aided and abetted").
IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice. DATED: September 13, 2016
/s/_________
JOHN A. KRONSTADT
United States District Judge