Opinion
NO. CV 15-9932-RSWL (AGR)
05-14-2018
GEORGE MANUEL LEIVA, Petitioner, v. D.G. ADAMS, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the other records on file herein, the Report and Recommendation of the United States Magistrate Judge and the Objections. 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.
In his objections, Petitioner raises two new unexhausted arguments in support of his challenge to admission of the jailhouse "kite" in Ground One of the Petition. Although unexhausted, the arguments can be rejected on the merits because it is clear that they do not raise a colorable federal claim.
Petitioner argues that admission of the "kite" violated his Confrontation Clause rights because "there was no way of knowing who the writer of the kite actually was." (Obj. at 1-2.) The California Court of Appeal concluded that there was sufficient evidence of authentication for the kite, which was from "D" for "Duende," meaning Elf in Spanish, which was Petitioner's nickname. (Report at 6; Id. at 5-8, 13-19.) Alternatively, assuming that the kite was properly authenticated, Petitioner argues that admission of the kite violated his right against self-incrimination. (Obj. at 2.) Petitioner misunderstands the scope of the Fifth Amendment, which provides, in pertinent part, that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment "protects the person asserting the privilege only from compelled self-incrimination." United States v. Doe, 465 U.S. 605, 610 (1984). The kite was found during a search of the recipient, another inmate, prior to his transportation to court. (Report at 6.) There is no evidence that creation of the kite was compelled. Use of a voluntarily created document would not violate the Fifth Amendment right against self-incrimination. See United States v. Hubbell, 530 U.S. 27, 35-36 (2000).
Petitioner's remaining objections are without merit.
IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice. DATED: 5/14/2018
s/ RONALD S.W. LEW
RONALD S.W. LEW
United States District Judge