1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN ATLAS, JR., Case No. ED CV 15-01504 RSWL (RAO)

12 Petitioner,

13 v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 14 ERIC ARNOLD, Warden, RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to

, the Court has reviewed the First Amended 18 Petition, all of the records and files herein, and the Magistrate Judge’s Report and 19 Recommendation (“Report”). Further, the Court has made a de novo determination 20 of those portions of the Report to which objections have been made.1 While the Court 21 accepts and adopts the findings, conclusions, and recommendations of the Magistrate 22 Judge as modified, the arguments raised in Petitioner’s Objections warrant 23 discussion. 24 Petitioner attached eight exhibits to his Objections, some of which were not 25 part of the state record previously lodged in this case and were not previously 26 1 Federal Rule of Civil Procedure 72(b)(2) gave Respondent a right to respond to the 27 objections, but the time to do so has elapsed and Respondent has filed neither a 28 response nor a request for an extension of time. 1 presented in this action, including the Declaration of Amanda Gregory, Ph.D. (Ex. 1 2 to Objections, hereinafter “Gregory Decl.”) and Dr. Gregory’s Psychological 3 Assessment Report (Ex. 2 to Objections, hereinafter “Gregory Assessment”). “[A] 4 district court has discretion, but is not required, to consider evidence presented for 5 the first time in a party’s objection to a magistrate judge’s recommendation.” United 6 States v. Howell,

(9th Cir. 2000). The Court has exercised its 7 discretion and considered the new evidence, but concludes that the new evidence 8 does not warrant departure from the conclusions articulated in the Report.2 9 According to the new evidence, Dr. Gregory, a neuropsychologist, evaluated 10 Petitioner on October 10 and 11, 2019, interviewed family members and reviewed 11 family declarations, reviewed Petitioner’s medical and legal records, and considered 12 Petitioner’s school district records. (Gregory Decl. at ¶ 3; Gregory Assessment at 13 19.) She diagnosed Petitioner with Schizoaffective Disorder, Bipolar Type, Multiple 14 Episodes, Currently in Full Remission, and Alcohol Use Disorder, In Sustained 15 Remission, In a Controlled Environment. (Gregory Decl. at ¶ 5b.) She opined that 16 at the time of the incident on April 2, 2013, Petitioner was experiencing symptoms 17 of Schizoaffective Disorder, Bipolar Type, and such symptoms “appear to have had 18 a significant impact on his mental state and behavior” at the time of the incident. (Id. 19 at ¶¶ 5c-d.) She further opined that at the time of the incident, Petitioner exhibited 20 symptoms similar to those exhibited during prior incidents of acute mania and 21 psychosis, including mood swings, irritability, agitation, verbal aggression, 22 impulsivity, poor judgment, grandiose thoughts, and psychotic symptoms. (Id. at 23 ¶¶ 7f, 7k, 7m.) 24 ///

25 2 Petitioner asserts that Dr. Gregory’s assessment was not presented earlier because 26 it was obtained in light of the allegations against Petitioner’s other examining expert, Dr. Jason Yang. (Obj. at 8.) The Court notes a ten-month delay between Dr. 27 Gregory’s first communication with Petitioner’s counsel in April 2019 and Dr. 28 Gregory’s report dated February 14, 2020. (Gregory Assessment at 18.) 1 Petitioner contends that his evidence in support of a mental state defense, 2 “further corroborated by Dr. Gregory’s report and the totality of the documents she 3 and Dr. [Y]ang relied on,” shows that trial counsel’s deficient performance 4 prejudiced Petitioner. (Obj. at 9-24.) 5 The Court concludes that there remains no reasonable probability that 6 presentation of the proffered evidence, including Dr. Gregory’s declaration, would 7 have raised a reasonable doubt in any juror’s mind as to whether Petitioner had the 8 specific intent to commit the charged offenses. The jury heard strong evidence that 9 Petitioner intended to dissuade the victims from testifying and to aid and assist the 10 Five Time gang at the time of the incident. (1 RT at 9-33, 42-51.) Petitioner argues 11 that his manic episode continued through the time of the incident as demonstrated by 12 his rapidly shifting mood, his loud and aggressive threats, and his lack of impulse 13 control and poor judgment. (Obj. at 17-18.) Even if the jury had heard that Petitioner 14 exhibited some symptoms of schizoaffective disorder, bipolar type at the time of the 15 incident, no reasonable juror would have concluded that Petitioner was having a 16 manic episode, given the stark contrast between Petitioner’s behavior when he is 17 having a manic episode and when he is not. Thus, there is no reasonable probability 18 that the outcome of the proceeding would have been different had the proffered 19 evidence been introduced. 20 Accordingly, the Court accepts and adopts the findings, conclusions, and 21 recommendations of the Magistrate Judge, with the following modifications, which 22 are not material to the Court’s decision: 23  At page 1, line 27, strike the “a” between “stayed” and “term,” so the phrase 24 reads, “a stayed term of five years.” 25  At page 19, lines 9-12, strike “The Court concludes that there is no reasonable 26 probability that presentation of the proffered mental defense evidence would 27 have convinced the jury that Petitioner actually lacked the specific intent to 28 dissuade the victims and to aid and assist a gang” and replace with “The Court 1 concludes that there is no reasonable probability that presentation of the 2 proffered mental defense evidence would have raised a reasonable doubt in a 3 juror’s mind as to whether Petitioner had the specific intent to commit the 4 charged offenses.” 5 IT IS ORDERED that the Report and Recommendation is adopted as modified, 6 the First Amended Petition is denied, and Judgment shall be entered dismissing this 7 action. 8 9 DATED: March 27, 2020 s/ RONALD S.W. LEW 10 RONALD S.W. LEW 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28