Opinion
2:16-cv-2904 KJM AC P
09-29-2021
JOSE RODOLFO RIVAS, Petitioner, v. SCOTT KERNAN, Respondent.
ORDER
Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 16, 2021, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. ECF No. 21. Petitioner has filed objections to the findings and recommendations. ECF No. 25.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.
The court writes separately to note that in his objections petitioner advances for the first time a contention that there was cumulative error from the three instances of ineffective assistance of counsel alleged in the petition. Petitioner has not raised a claim of cumulative error in the petition. See ECF No. 1, passim. A claim of cumulative error is distinct from claims based on individual alleged errors, see Wooten v. Kirkland, 540 F.3d 1019, 1026-26 (9th Cir. 2008), and new claims are not properly raised for the first time in pleadings that follow the original petition, see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). For these reasons, the court has not considered petitioner's contention that counsel's alleged errors had a cumulatively harmful effect.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 16, 2021, ECF No. 21, are adopted in full;
2. The petition for writ of habeas corpus is denied and this case is closed; and
3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.