1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT LARS PAPE, Case No. 5:23-cv-00353-HDV (SSC)

12 Petitioner, ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 GISELLE MATTESON, Warden, JUDGE 15 Respondent. 16 17 18 Pursuant to

, the Court has reviewed the Petition, the records 19 on file, and the Report and Recommendation (“Report”) of the United States 20 Magistrate Judge. Further, the Court has engaged in a de novo review of those 21 portions of the Report to which objections have been made. 22 The Report recommends the denial of the Petition and the dismissal of this 23 action with prejudice. (ECF No. 33.) Petitioner’s objections to the Report (ECF 24 No. 38) do not warrant a change to the Report’s findings or recommendations. 25 Petitioner objects that the Court’s deference to the state court’s decision is no 26 longer required under

(d) and, further, such deference is 27 “impermissible.” (ECF No. 38 at 12-25.) To the contrary, deference is required, as 28 the Supreme Court recently noted. See Andrew v. White, 604 U.S.__,

, 1 82-83 (2025) (per curiam) (noting “the deference federal habeas courts must extend 2 to a state court’s ‘application of’ [the Supreme] Court’s precedent” and remanding 3 the case for an inquiry under that standard in the first instance). The Report 4 properly recognized and applied the deference required by

(d) to 5 the state court’s adjudication of Petitioner’s federal claims. 6 For Claim One, Petitioner objects that the ten-year delay between the crimes 7 and the prosecution violated his right to due process. (ECF No. 38 at 25-37.) 8 Petitioner argues that he was actually prejudiced by the loss of critical evidence, 9 consisting of the testimony of Norma Hanna, her computer and videogame 10 software, and cellphone tower data. (Id. at 28-35.) As the Report found, the 11 alleged prejudice from the unavailability of this evidence is speculative, not 12 concrete. (ECF No. 33 at 30-31.) It is speculative that the evidence from Ms. 13 Hanna would have corroborated Petitioner’s account or that the cellphone tower 14 data ever existed. (Id.) Although Petitioner further argues that the State had no 15 legitimate reasons for the charging delay (ECF No. 38 at 35-37), he is not entitled 16 to relief for that argument because, as the Report found, he failed to establish actual 17 prejudice (ECF No. 33 at 28). 18 For Claim Two, Petitioner objects that the exclusion of third-party culpability 19 evidence violated Petitioner’s constitutional right to present a defense. (ECF No. 20 38 at 37-49.) As the Report found, the third-party culpability evidence might have 21 showed motive and opportunity for possible other perpetrators, but it showed little 22 else. (ECF No. 33 at 44.) Petitioner’s defense suggested that it would require at 23 least eight witnesses to present a third-party culpability theory, “which would have 24 turned into a trial within the trial.” (Id.) Given that the evidence of third-party 25 culpability was lacking, any error in excluding that evidence was harmless. (Id. at 26 45.) Thus, Petitioner failed to show a violation of his federal rights by the 27 exclusion of this evidence. Finally, although Petitioner further argues that there 28 was no state court adjudication of a federal claim to which the Court should defer 1 (ECF No. 38 at 42), Petitioner has not rebutted the strong presumption that the state 2 court did adjudicate, without expressly saying so, the federal claim on the merits. 3 After explaining, in great detail over several pages, why the third-party culpability 4 evidence was properly excluded for its minimal probative value (ECF No. 15-41 at 5 31-39), the state court may have regarded the federal claim as “too insubstantial to 6 merit discussion.” Johnson v. Williams,

(2013). Thus, the 7 Report properly reviewed the federal claim with deference to the state court’s 8 decision. 9 For Claim Three, Petitioner objects that he was prejudiced by the admission 10 of hearsay testimony regarding a statement the victim had made, on the evening of 11 her death, about expecting to meet Petitioner that day. (ECF No. 38 at 49-52.) As 12 the Report found, a violation of state evidentiary rules is not cognizable in a federal 13 habeas action. (ECF No. 33 at 49.) Moreover, because the statement was not 14 testimonial, no Confrontation Clause violation could have occurred. (Id.) And 15 although Petitioner argues that there was no state court adjudication of a 16 Confrontation Clause claim to which the Court should defer (ECF No. 38 at 51), 17 given that the victim’s statement clearly was not testimonial, the state court may 18 have simply regarded such a claim as “too insubstantial to merit discussion.”

U.S. at 299. 20 For Claim Four, Petitioner objects that the admission of speculative, 21 unreliable cell tower evidence violated his constitutional rights. (ECF No. 38 at 52- 22 56.) Petitioner’s argument that the evidence should have been excluded as 23 scientifically unreliable under Daubert v. Merrell Dow Pharms., Inc.,

(1993), or under California’s Kelly/Fry standard, is not cognizable in a federal 25 habeas action. See Caldeira v. Janda,

, at *7 (C.D. Cal. Dec. 4, 26 2013) (Daubert and Kelly/Frye claims are not cognizable in federal habeas actions) 27 (collecting cases). And as the Report further found, a federal due process violation 28 from the erroneous admission of evidence occurs “[o]nly if there are no permissible 1 inferences the jury may draw from the evidence.” (ECF No. 33 at 54 (quoting 2 Jammal v. Van de Kamp,

(9th Cir. 1991).) The cell tower 3 evidence raised a permissible inference that Petitioner and his co-perpetrator “had 4 the opportunity to commit the murders because they were traveling together toward 5 [the victim’s] house shortly before the murders, their cellphones then stopped 6 communicating for several hours, and the phones did not resume communication 7 until after the crime.” (ECF No. 33 at 55.) And although Petitioner again argues 8 that there was no state court adjudication of a federal claim to which the Court 9 should defer (ECF No. 38 at 55), Petitioner did not rebut the strong presumption 10 that the state court did silently adjudicate a federal claim on the merits. The state 11 court found that the cell tower evidence was relevant to issues in the case. (ECF 12 No. 15-41 at 42-44.) When the evidence is relevant, a court “need not explore 13 further” the claim that admission of that evidence violates due process. Estelle v. 14 McGuire,

(1991). Thus, the state court may have simply regarded 15 a federal due process claim as “too insubstantial to merit discussion.” Johnson, 568 16 U.S. at 299. 17 For Claim Five, Petitioner objects that the admission of the preliminary 18 hearing testimony of J. Witt, a witness who later was unavailable for trial because 19 he invoked the Fifth Amendment, violated Petitioner’s right to confrontation. (ECF 20 No. 38 at 57.) As the Report found, Petitioner failed to show entitlement to relief. 21 Petitioner had an adequate opportunity to cross-examine the witness at the 22 preliminary hearing about his possible bias and motives, and Petitioner also 23 presented additional evidence during the trial about the witness’s felony conviction 24 for impersonating a peace officer and other bad acts. (ECF No. 33 at 63-64.) 25 For Claim Six, Petitioner objects that he is entitled to relief because of the 26 exclusion of critical impeachment evidence that J. Witt, the same witness, had 27 mentioned a reward for helping with the case. (ECF No. 38 at 58-59.) As the 28 Report found, Petitioner failed to show a violation of his constitutional rights. 1 || Evidence of the reward was marginally relevant, given that this witness was 2 || aggressively and thoroughly impeached at trial. (ECF No. 33 at 73-74.) 3 || Specifically, as the state court detailed, this witness “was convicted of 4 || impersonating a peace officer. He impersonated [another person] in conversation 5 || with the defense investigator. He said that he resigned from his waterpark job, but 6 || the evidence suggested that he was terminated for threatening the manager’s life. 7 || He threatened a neighbor with a gun and had an arrest for another firearm 8 || evidence.” (ECF No. 15-41 at 63.) Given this thorough impeachment, evidence of 9 || this witness mentioning a reward would have added little. And although Petitioner 10 || again argues that there was no state court adjudication of a federal claim to which 11 || the Court should defer (ECF No. 38 at 59), given that the excluded evidence had 12 || minimal value, the state court may have simply regarded the federal claim as “too 13 || insubstantial to merit discussion.” Johnson,

. 14 For Claim Seven, Petitioner objects that cumulative errors warrant relief. 15 || (ECF No. 38 at 59-60.) As the Report found, because there was no prejudicial 16 || constitutional error, there was no prejudice to accumulate. (ECF No. 33 at 74.) 17 IT IS ORDERED that (1) the Report and Recommendation is accepted and 18 || adopted; and (2) Judgment will be entered denying the Petition and dismissing this 19 || action with prejudice. 20 21 || DATED: 04/15/25 __ IY Ye 22 (46 a 23 2a UNITED STATES DISTRICT JUDGE 25 26 27 28