Opinion
CV 18-2245 JWH (PVC)
01-29-2021
JOSE GIOVANNI LOPEZ, Petitioner, v. ROSEMARY NDOH, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JOHN W. HOLCOMB UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
Among the several exhibits attached to the Objections is a declaration from Petitioner's father, Juan Jose Lopez, which does not appear to have been previously submitted in this case. (Objections, Ex. A at 69.) In the declaration, Mr. Lopez testifies in relevant part that he gave Petitioner's counsel a copy of a videotape that proves that Petitioner was threatened by “LT” and his wife. (Id.) The declaration is proffered in support of Ground 2(a), which alleges that counsel was ineffective for failing to present a videotape at trial showing that Petitioner acted under duress. (SAP at 5-6.) However, while the declaration may be evidence that Petitioner's counsel received a copy of the videotape, it does not show that the California Supreme Court's rejection of this ineffective assistance claim on the merits was an unreasonable application of federal law. As the Magistrate Judge explained in the Report and Recommendation, the state court could reasonably have concluded that counsel determined that the tape was more useful to the defense in its absence because it allowed counsel to argue that the tape may have been exculpatory, but the prosecution declined to use its resources to enhance it. (R&R at 49-50.) Furthermore, the mere fact that counsel may have received a copy of the videotape does not show that Petitioner was prejudiced because the jury was aware of the events purportedly depicted on the tape through Petitioner's father's testimony. (Id. at 50.) Therefore, the declaration does not compel a different outcome here.
IT IS ORDERED that the Second Amended Petition is DENDZD and Judgment shall be entered DISMISSING this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner and on counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.