1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | CHARLES EDWARD ALLEN, Case No. 2:17-cv-09239-PSG-MAA Petitioner, ORDER ACCEPTING REPORT AND ep Sree bee 14 | W.L. MONTGOMERY, Warden, 15 Respondent. 16 17 18 Pursuant to

, the Court has reviewed the Petition, the other 19 || records on file herein, and the Report and Recommendation (“R&R”) of the United 20 || States Magistrate Judge. Further, the Court has engaged in a de novo review of 21 || those portions of the R&R to which objections have been made. For the reasons 22 || below, Petitioner’s Objections are overruled. 23 Petitioner objects under Ground One that his constitutional rights were 24 || violated because two state court judges denied Petitioner’s requests to have his 25 || defense investigator inspect the crime scene, based on the judges’ mistaken belief 26 || that they lacked authority to grant the requests (“Objections”). (Objs., ECF No. 59, 27 | at 9, 14-15.) But even assuming it were true that the judges improperly denied the 28 || requests because they misperceived their authority, this does not entitle Petitioner to

1 || relief. See Murray v. Schriro,

(9th Cir. 2018) (“Merely showing 2 || that access to evidence was denied does not establish a constitutional violation.” 3 | (citing United States v. Valenzuela-Bernal,

(1982))). Contrary to 4 || Petitioner’s suggestion that the error was structural, (Objs., at 15), a showing of 5 || prejudice was required, see United States v. Dring,

(9th Cir. 6 || 1991). Petitioner did not show prejudice because he did not plausibly argue in the 7 || state court why access to the crime scene was necessary, and because other sources 8 || of evidence were accessible to him (such as photographs and witnesses) about the 9 || particular features of the crime scene. (See R&R, ECF No. 55, at 19.) 10 Petitioner next objects under Ground Two that his constitutional rights were 11 || violated by the denial of his motion pursuant to Pitchess v. Superior Court,

|| 3d 531 (1974), for information from the personnel files of the police officers who 13 || helped investigate the crimes. (Objs., at 10, 15-16.) Habeas relief for this claim is 14 || unwarranted because Petitioner did not make, for each officer, “a preliminary 15 || showing that the file contains information material to his defense.” See Harrison v. 16 | Lockyer,

(9th Cir. 2003). 17 Petitioner next objects under Ground Three that his right to present a defense 18 || was violated by the trial court’s refusal to allow Petitioner use of a mannequin at 19 || trial to demonstrate that it would have been impossible for Petitioner to have 20 || attacked the victim in the manner the victim alleged. (Objs., at 11, 16-18.) The 21 || California Court of Appeal opined that such a demonstration was inadmissible 22 |} because it “would most certainly be misleading and confusing for the jury.” (R&R, 23 | at 25.) Although Petitioner disagrees that it would have been misleading, by 24 || arguing that “an appropriate mannequin comparable to [the victim’s] height could 25 || have been selected,” (Objs., at 18), Petitioner’s argument is not subject to federal 26 || habeas review, see Johnson v. Sublett,

(9th Cir. 1995) (“[T]his 27 || argument presents state-law foundation and admissibility questions that raise no 28 || federal habeas issues.” (citing Estelle v. McGuire,

(1991))). And

1 although Petitioner further argues that he was barred from “cross-examining [the 2 || victim] with a demonstrative aid simply because he was a pro/per litigant,” (Objs., 3 || at 18), this argument is unsupported by the record. Nothing in the record suggests 4 || that Petitioner’s status as a pro per defendant during trial was the reason why the 5 || demonstration with a mannequin was denied. Rather, the demonstration was 6 || denied because it would have turned the victim’s cross-examiner, regardless of 7 || whether that cross-examiner was a pro per defendant or an attorney, into an 8 || unsworn witness. (R&R, at 24-25.) 9 Petitioner next objects under Ground Four that his state-created right to pro 10 || per library privileges was revoked in violation of due process. (Objs., at 11-12, 11 || 19-21.) He first argues that he “was not given proper notice” of the disciplinary 12 || proceeding that led to the revocation of his library privileges. (/d., at 12, 19.) To 13 || the extent that Petitioner is arguing that he did not receive a “written statement by 14 || the factfinders as to the evidence relied on and reasons for the disciplinary action,” 15 || see Wolff v. McDonnell,

(1974), the record permits a strong 16 || inference that he did. Officer Hinton declared that he gave Petitioner a copy of the 17 || disciplinary decision. (R&R, at 37.). The declaration was consistent with 18 || subsequent events, specifically, Petitioner’s objections to the decision. (/d.) 19 Petitioner also argues under Ground Four that he was improperly denied “the 20 || ability to present witnesses in his defense at the jail administrative hearing” that led 21 | to the revocation of his library privileges. (Objs., at 12, 19.) However, Petitioner’s 22 || right to present witnesses was not absolute, and jail officials did not violate due 23 || process by accepting the witnesses’ written statements in lieu of live testimony. 24 || (R&R, at 36.) Petitioner also argues under Ground Four that he should have 25 || received access to online legal research. (Objs., at 12, 19.) However, Petitioner 26 || never requested access to online legal research, and there was no right to such 27 || research, under either federal or state law. (R&R, at 38-39.) 28 || ///

1 Petitioner finally objects under Ground Five that the trial court abused its 2 || sentencing discretion under People v. Superior Court (Romero),

3 || (1996), by declining to dismiss his prior strike convictions. (ECF No. 59 at 12, 22— 4 || 23.) This claim is not cognizable on federal habeas review. See Brown v. Mayle, 5 ||

(9th Cir. 2002) (Romero claim is not cognizable on federal 6 || habeas review), judgment vacated on other grounds,

(2003). More 7 || broadly, Petitioner’s argument does not state a claim. Petitioner is not arguing that 8 || the trial court misunderstood its sentencing discretion, refused to hear Petitioner’s 9 |) arguments, or otherwise conducted a procedurally flawed sentencing hearing. 10 || Petitioner is only arguing that the result of the sentencing hearing, i.e., the actual 11 |} sentence imposed, was wrong because his prior strike convictions should have been 12 |} dismissed as remote in time. (Objs., at 22-23.) This argument does not raise a due 13 || process claim. See McQueary v. Blodgett,

(9th Cir. 1991) 14 || (where a habeas petitioner had “a full and fair opportunity to have his case heard” 15 || and only challenges “the substantive result’ or “the actual sentence itself,” he does 16 || not raise “a cognizable constitutional claim on the facts alleged” (emphasis in 17 || original)). 18 IT IS THEREFORE ORDERED that (1) the Report and Recommendation of 19 | the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 20 || Petition and dismissing this action with prejudice. 21 22 || DATED: poly Zoi LZ. 24 . 25 UNITED STATES DISTRICT JUDGE 26 27 28