Opinion
Case No. SACV 13-1082-GW (JPR)
07-01-2014
JASON ALEXANDER MAHONEY, Petitioner, v. R. DIAZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS
OF U.S. MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. On April 2, 2014, Petitioner filed objections to the Report and Recommendation, mostly simply-repeating the arguments in the Petition and Reply. One of his contentions does warrant a response, however.
He claims that the Magistrate Judge erred in stating, in connection with Petitioner's ineffective-assistance-of-counsel claim, that Petitioner never identified whom his lawyer could have used as a witness to support Petitioner's claim that he had left the PENI gang at the time of the underlying crimes. (Objections at 6.) Petitioner asserts that "James Hunt is mentioned in the trial transcripts and has provided a notarized affidavit in support based on his personal knowledge that Petitioner 'was retired when I met him in 2007,'" and that Petitioner attached Hunt's declaration to the Reply. (Id. at n.6.) But Petitioner never submitted Hunt's declaration to the state courts; indeed, Hunt didn't even sign the declaration until November 2013 (Reply, Hunt Decl.), four months after the state supreme court denied the last of Petitioner's state habeas petitions (see Lodged Doc. 16). Thus, the Magistrate Judge was correct not to consider Petitioner's argument concerning Hunt. See Cullen v. Pinholster. 563 U.S. ___, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). In any event, given that Hunt was a "PENI 'shot caller,'" as the California Court of Appeal noted (Lodged Doc. 8 at 5), Petitioner's counsel might reasonably have decided that his testimony would not have been credible. The Court accepts the findings and recommendations of the Magistrate Judge.
Because the document was not sworn to before a judge or other authorized official, it is actually a declaration, not an affidavit. See Black's Law Dictionary 62, 436 (8th ed. 2004).
IT THEREFORE IS ORDERED that the Petition is denied, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice.
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GEORGE WU
U.S. DISTRICT JUDGE