1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OSCAR C. ESPARZA, Case No. 2:17-cv-03168-AB-MAA

12 Petitioner, ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 JOE A. LIZARRAGA, Warden, JUDGE 15 Respondent. 16 17 Pursuant to

, the Court has reviewed the Petition, the other 18 records on file herein, the March 1, 2019 Report and Recommendation of the 19 United States Magistrate Judge (“First R&R,” ECF No. 24), and the August 7, 2019 20 Report and Recommendation of United States Magistrate Judge re: Request for 21 Stay and Abeyance (“Second R&R,” ECF No. 34). 22 The Court also has reviewed Petitioner’s filings responsive to the R&Rs. On 23 July 2, 2019, Petitioner constructively filed objections to the First R&R. (“First 24 R&R Objections,” ECF No. 33.) On August 23, 2019, Petitioner constructively 25 filed objections to the Second R&R. (“Second R&R Objections,” ECF No. 36.) 26 On September 12, 2019, Petitioner constructively filed a motion to withdraw his 27 unexhausted resentencing claims. (“Motion to Withdraw,” ECF No. 37.) On 28 October 15, 2019, the Court received and filed a freestanding declaration from 1 Petitioner stating that he is innocent of the crime for which he was convicted. 2 (“Declaration,” ECF No. 39.) Respondent did not respond to any of these filings. 3 As required by Federal Rule of Civil Procedure 72(b)(3), the Court has 4 engaged in de novo review of the portions of the R&Rs to which Petitioner 5 specifically has objected. The objections generally reiterate arguments made in 6 Petitioner’s substantive briefs (see generally ECF Nos. 1, 23, 28), and they lack 7 merit for the reasons set forth in the R&Rs. Below, the Court addresses arguments 8 Petitioner first asserts in the objections. 9 In the First R&R Objections, Petitioner objects that the matter was not ready 10 for decision because he had a pending petition for a writ of habeas corpus in the 11 California courts, and the Court had not yet rendered a decision on his motion for a 12 stay and abeyance. (See First R&R Objections at 2-3.) As discussed in the Second 13 R&R, the claims for which Petitioner sought a stay and abeyance were not, and 14 never have been, pleaded in this action. (Second R&R at 4-5.) Accordingly, the 15 matter was ready for decision as pleaded. 16 Petitioner objects without elaboration to the California Court of Appeal’s 17 factual summary, which the First R&R recounted. (See First R&R Objections at 3; 18 see also First R&R at 3-7.) Petitioner offers no evidence, let alone clear and 19 convincing evidence, demonstrating that the factual summary should not be entitled 20 to a presumption of correctness. See Hedlund v. Ryan,

(9th Cir. 21 2017). 22 Petitioner objects to the Magistrate Judge’s conclusion that he has not 23 presented a cognizable basis for federal relief, claiming for the first time that “the 24 defects in the integrity of the procedure” violate the Equal Protection Clause of the 25 Fourteenth Amendment, that “[t]he entire trial lacked sufficient evidence to secure 26 a conviction on the merits,” and that he was deprived of the fair opportunity to 27 present a defense at trial. (First R&R Objections at 3-5.) The Court declines to 28 exercise its discretion to entertain these unsupported, unsubstantiated claims, which 1 Petitioner first raised in his First R&R Objections. See United States v. Howell, 2

(9th Cir. 2000); see also, e.g., Blunk v. Ryan,

, 3 737 (9th Cir. 2018) (declining to consider “brand-new stand-alone claim for relief 4 that could have been raised long before the magistrate judge considered his habeas 5 petition” but instead was raised “for the first time in his objections”). Even if these 6 new federal-law theories properly were asserted in this action, because Petitioner 7 has not presented them to the California Supreme Court (see generally LD 2; LD 8 13), they are unexhausted. See Gray v. Netherland,

(1996). 9 In the Declaration, Petitioner states under penalty of perjury that he was not 10 the person who shot the victim, that he did not own or possess a gun on the day of 11 the shooting, and that he is innocent of murder. (Declaration at 1.) The Declaration 12 is substantially similar to a declaration Petitioner submitted with the Petition (see 13 Petition at 11), but unlike that earlier declaration, the new Declaration is submitted 14 under penalty of perjury. Regardless, the First R&R considered his earlier 15 declaration in deciding the merits of the Petition and concluded that, “[e]ven if 16 Petitioner swore to the facts, his self-serving declaration would not be sufficient.” 17 (First R&R at 24.) “Self-serving statements by a defendant that his conviction was 18 constitutionally infirm are insufficient to overcome the presumption of regularity 19 accorded state convictions.” Turner v. Calderon,

(9th Cir. 2002) 20 (quoting Cuppett v. Duckworth,

(7th Cir. 1993)). The reasoning 21 in the First R&R applies to the Declaration in similar force. (See First R&R at 23- 22 26.) The Court adopts the reasoning accordingly. 23 In the Second R&R Objections, Petitioner contends that the Court cannot 24 assume that Petitioner seeks to add the claims he asserts in his state-court 25 resentencing petition because the Court “cannot compare a Superior Court petition, 26 presenting state laws to a state court, under state standards” to a “fully adjudicated, 27 argued, and exhausted through the state appellate system, in which the federal 28 constitutional issues were considered and ruled upon by the California []Supreme 1 Court.” (Second R&R Objections at 3-4.) Petitioner contends the Court has used a 2 “crystal ball” approach to divine the claims Petitioner seeks to present to the 3 California Supreme Court and then to add to his federal action. (See id. at 3-5.) 4 Yet Petitioner still has not presented to this Court the federal claims he seeks to 5 adjudicate in in this district court. The Magistrate Judge reasonably assumed that 6 Petitioner sought a stay and abeyance in order to bring in the district court the 7 claims he asserted in his petition before the Superior Court. (See Second R&R at 8 5.) Petitioner has not provided any information in his objections suggesting that his 9 federal claims are anything other than what the Magistrate Judge assumed they 10 were. To the extent Petitioner maintains he has not yet formulated the claims he 11 seeks to adjudicate in federal court, then a stay pursuant to Rhines v. Weber, 544

(2005), is not appropriate because the Court cannot determine whether 13 Petitioner’s unidentified claims are plainly meritless. See Rhines, 544 U.S. at 277 14 (observing that a “district court would abuse its discretion if it were to grant [a 15 petitioner] a stay when his unexhausted claims are plainly meritless”). Moreover, 16 Petitioner is required to fairly present both the operative facts and precise legal 17 theory upon which he seeks to proceed in federal court to the California Supreme 18 Court. See Gray,

; Davis v. Silva,

(9th Cir. 19 2008). To the extent Petitioner contends that the claims he would bring in federal 20 court would contain different federal legal theories than those he presented in his 21 state-court petitions, he admits that he has not exhausted and does not intend to 22 exhaust his federal claims in the state courts. 23 Petitioner attempts to rehabilitate his Senate Bill 620 claim by casting it as an 24 equal protection claim. (See Second R&R Objections at 5.) Again, the Court 25 declines to exercise its discretion to address this claim, which Petitioner cursorily 26 raised for the first time in the Second R&R Objections. See Howell,

622; Blunk, 728 F. App’x at 737. 28 /// 1 Petitioner asks that this federal court “compel the state courts to expedite the 2 proceedings so that the federal court may proceed with it[]s adjudication.” (Second 3 R&R Objections at 6; accord id. at 7.) This federal court lacks authority to do so. 4 See Demos v. U.S. Dist. Court,

, 1161 (9th Cir. 1991) (“[T]his court 5 lacks jurisdiction to issue a writ of mandamus to a state court.”). 6 Finally, the Court notes that after the filing of the R&Rs and the First and 7 Second R&R Objections, Petitioner sought leave to withdraw his unexhausted 8 resentencing claims. (See Motion to Withdraw.) Because Petitioner no longer 9 seeks to bring these unexhausted claims in this federal action, he no longer needs a 10 stay of these proceedings in order to exhaust those claims. Accordingly, in addition 11 to the reasons for denying the stay request identified by the Magistrate Judge in the 12 Second R&R, the Court denies the request for stay and abeyance as moot. 13 In sum, the Court finds no defect of law, fact, or logic in the R&Rs. The 14 Court concurs with and accepts the findings, conclusions, and recommendations of 15 the United States Magistrate Judge, and overrules both sets of objections. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, IT IS ORDERED: 2 1. The Second R&R Objections (ECF No. 36) are overruled; 3 2. The Second R&R (ECF No. 34) is accepted and adopted; 4 3. Petitioner’s request for stay and abeyance (ECF No. 28) is denied; 5 4. The First R&R Objections (ECF No. 33) are overruled; 6 5. The First R&R (ECF No. 24) is accepted and adopted; 7 6. The Petition (ECF No. 1) is denied; 8 7. Petitioner’s requests for an evidentiary hearing (ECF No. 1, at 58; ECF 9 No. 23, at 6) are denied; and 10 8. Judgment shall be entered denying the Petition and dismissing this 11 action with prejudice. 12 13 | DATED: October 28, 2019 du 14 Is UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28