Case 8:14-cv-02002-DDP-JPR Document 196 Filed 03/07/22 Page 1 of 3 Page ID #:7720

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHARLES CRAIG CLEMENTS, ) Case No. SACV 14-2002-DDP (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE RAYTHEL FISHER, Warden, ) 14 ) Respondent. ) 15 ) 16 17 The Court has reviewed the Second Amended Petition, records 18 on file, and Report and Recommendation of U.S. Magistrate Judge. 19 See

(b)(1). On July 21, 2021, Petitioner objected 20 to the R. & R. Respondent did not reply. 21 As Petitioner argues and the Magistrate Judge acknowledged, 22 this case smells somewhat. The use in the investigation and 23 trial of a well-known confidential informant who may have at 24 least to some degree concocted his claims against Petitioner was 25 unsavory. But the state court and the Magistrate Judge assumed 26 error and simply found that those errors did not meet the 27 applicable tests. Petitioner is understandably upset, but the 28 fact remains that the jury deadlocked evenly on the charge as to Case 8:14-cv-02002-DDP-JPR Document 196 Filed 03/07/22 Page 2 of 3 Page ID #:7721

1 which the confidential informant’s testimony almost exclusively 2 applied, and that charge was eventually dismissed. As the 3 Magistrate Judge explained, his testimony had little bearing on 4 the remaining disputed issues at trial, as to which the evidence 5 was very strong. (R. & R. at 31-35.) Thus, as the Magistrate 6 Judge concluded, the state court was not objectively 7 unreasonable, nor did it materially err, in finding that any 8 errors were harmless. (Id. at 39-50.) 9 Petitioner claims that he is entitled to an evidentiary 10 hearing on his Napue claim because the informant’s “admission 11 that he worked in concert with the state to manufacture the 12 solicitation charge undoubtedly could have affected the judgment 13 of the jury.” (Objs. at 10.) Tellingly, he never explains in 14 the Objections what that purported admission was (see

at 10- 15 11), and as the Magistrate Judge pointed out, the evidence he 16 cited in his SAP to support that claim was “attenuated” (R. & R. 17 at 47 n.17). Further, he is not entitled to an evidentiary 18 hearing on his ineffective-assistance-of-counsel claims because 19 he failed in the state court to elicit a declaration or testimony 20 from trial or appellate counsel concerning their actions, and as 21 the Magistrate Judge pointed out, there were reasons apparent 22 from the record that could have explained them. See Dunn v. 23 Reeves,

, 2413 (2021) (per curiam) (finding that 24 habeas counsel’s failure to submit declaration or elicit 25 testimony from trial counsel concerning his actions defeated 26 ineffective-assistance claim when record suggested strategic 27 reasons for challenged actions because “a silent record cannot 28 2 Case 8:14-cv-02002-DDP-JPR Document 196 Filed 03/07/22 Page 3 of 3 Page ID #:7722

1 discharge a petitioner’s burden”).1 2 The Court accepts the findings and recommendations of the 3 Magistrate Judge. IT THEREFORE IS ORDERED that the SAP is DENIED 4 and Judgment be entered dismissing this action with prejudice. 5 6 DATED: 3-7-2022 DEAN D. PREGERSON 7 U.S. DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 Petitioner objects to the Magistrate Judge’s “suggest[ion] that trial counsel engaged in some investigation of a Massiah claim 25 by seeking some of [the informant’s] housing and classification 26 records.” (Objs. at 15 (citing R. & R. at 58).) He claims those requests “were specifically limited to yet another specious 27 allegation” brought up before trial. (Id.) But he provides no cite to the voluminous record to support his claim, and the Court 28 declines to simply accept him at his word. 3