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BUENTIEMPO v. LACKNER, CV 13-9121-BRO (JPR). (2014)

Court: District Court, C.D. California Number: infdco20141028748 Visitors: 8
Filed: Oct. 21, 2014
Latest Update: Oct. 21, 2014
Summary: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE BEVERLY REID O'CONNELL, District 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 October 1, 2014, Petitioner filed objections to the R&R, in which he mostly simply repeats the arguments in his Petition and Traverse. Most of Petitioner's objections relate to his claims centering on the photo-lineup identifications made by
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ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

BEVERLY REID O'CONNELL, District 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 October 1, 2014, Petitioner filed objections to the R&R, in which he mostly simply repeats the arguments in his Petition and Traverse. Most of Petitioner's objections relate to his claims centering on the photo-lineup identifications made by the two victims; Petitioner alleges that neither witness spoke English, the record is unclear on who translated for them during the identification procedures, the identifications were unduly suggestive as a result, and his lawyer was ineffective for not challenging the identifications more vigorously. The Magistrate Judge reasonably rejected all of these arguments in the Report and Recommendation. (See R&R at 9-16, 20-24.) At about the same time that the Magistrate Judge filed the Report and Recommendation, the Ninth Circuit Court of Appeals issued a decision affirming at least part of the reasoning in it: no clearly established law holds that a witness must be given an admonition before viewing a photo lineup, see United States v. Carr, 761 F.3d 1068, 1076 (9th Cir. 2014), and therefore no habeas relief was available on Petitioner's claims asserting that even if an admonition was given, the witnesses couldn't understand it (see R&R at 14). For all these reasons, the Court accepts the findings and recommendations of the Magistrate Judge.

IT IS ORDERED that the Petition is denied without leave to amend, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice.

Source:  Leagle

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