Eric Curtis Lund v. Izen Locatelli, et al.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ERIC CURTIS LUND, No. 2:21-cv-01831-DJC-SCR [12] Petitioner, [13] v. ORDER [14] IZEN LOCATELLI, et al., [15] Respondents. [16] 17 Petitioner, proceeding through counsel, filed this application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 . The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 20 Presently pending is Respondents’ partial Motion to Dismiss the Third 21 Amended Petition. (ECF No. 39.) On March 20, 2025, the Magistrate Judge filed 22 Findings and Recommendations herein which were served on all parties and which 23 contained notice to all parties that any objections to the Findings and 24 Recommendations were to be filed within twenty-one days. Petitioner filed 25 Objections to the Findings and Recommendations as well as a Request for Judicial 26 Notice. (ECF Nos. 47–48.) Respondents submitted a Response to Petitioner’s 27 Objections and an Opposition to the Request for Judicial Notice. (ECF Nos. 50, 52.) 28 Petitioner filed a Reply to Respondent’s Opposition to the Request for Judicial Notice. 1 (ECF No. 51.) Petitioner separately filed Objections to the Magistrate Judge’s Order 2 denying one of Petitioner’s prior requests for judicial notice to which Respondents 3 have also responded. (ECF Nos. 46, 49.) 4 I. New Request for Judicial Notice 5 Petitioner requests that the Court take judicial notice of excerpts of the 6 transcripts of his testimony in a civil rights trial, which describes prison official’s 7 confiscation of his legal mail. (ECF No. 48.) Petitioner relies on this new evidence in 8 support of his argument that the procedural default of any claims in his Third 9 Amended Petition should be excused. The Court denies Petitioner’s request for 10 judicial notice because this new evidence was submitted for the first time in his 11 objections to the Magistrate Judge’s findings and recommendations. Petitioner’s 12 newly proffered basis to excuse his procedural default could have been raised earlier 13 by submitting his own sworn declaration, especially since he has known of these facts 14 since 2020 and because he is represented by counsel in these proceedings. As such, 15 this court exercises its discretion and declines to consider it. See United States v. 16 Howell, 231 F.3d 615, 621 (9th Cir. 2000) (stating that a district court is not required to 17 consider new evidence presented in objections to a magistrate judge’s 18 recommendation). 19 II. Findings and Recommendations on Respondents’ Motion to Dismiss 20 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 21 304, this court has conducted a de novo review of this case and the Magistrate 22 Judge’s Findings and Recommendations on Respondents’ Motion to Dismiss. Having 23 carefully reviewed the entire file, the Court finds the Findings and Recommendations 24 to be supported by the record and by proper analysis. 25 Throughout his Objections, Petitioner repeatedly raises that “the Magistrate 26 Judge failed to address Lund’s legal arguments” and lists “arguments” that the 27 Findings and Recommendations allegedly did not address. (See ECF No. 47 at 1, 3– 28 6.) That the Magistrate Judge did not expressly list and reject every single argument 1 and sub-argument raised by Petitioner does not render the Findings and 2 Recommendations improper or inadequate. The Magistrate Judge was under no 3 obligation to address in writing every argument made by Petitioner in his Opposition. 4 See United States v. Howe, No. 2:19-cv-00421-DCN, 2021 WL 276696 , at *3 (D. Idaho 5 Jan. 26, 2021). As is readily apparent from the Findings and Recommendations, the 6 Magistrate Judge reviewed and considered all of the arguments raised by Petitioner. 7 Whether explicitly or implicitly, the Findings and Recommendations are clear as to the 8 Magistrate Judge’s ruling on each of Plaintiff’s arguments and the basis for the 9 Magistrate Judge’s ultimate recommendations. 10 The Court is also unpersuaded by Petitioner’s claims that the Magistrate Judge 11 misapplied the law. The Magistrate Judge’s determination that the “Villa Bar” was a 12 state procedural bar that was independent of federal law and adequate to bar habeas 13 review on the merits was soundly reasoned. The Villa Bar is both independent and 14 adequate. See Lee v. Harris, 226 F. Supp. 3d 992 , 996–98 (N.D. Cal. 2016). Contrary 15 to Petitioner’s assertion to the contrary, the Magistrate Judge was not required to 16 presume the state court’s denial was based in part upon federal grounds, as the state 17 court made clear that it was resting its decision on independent and adequate state 18 grounds. See Bennet v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). 19 The Findings and Recommendations are also correct in their application of the 20 Statute of Limitations Bar. Contrary to Petitioner’s arguments, the Magistrate Judge 21 did not err in finding that the prosecutorial misconduct claims for introducing 22 evidence of the wrong network, questioning to solely make inferences, asking 23 petitioner if he had a motive to lie, and invading spousal privilege, did not relate back 24 to prior, timely petitions. Each of these claims in the Third Amended Petition involves 25 different underlying facts from claims asserted in prior petitions. 26 The Magistrate Judge’s determination as to cause and prejudice analysis for 27 application is also accurate; Petitioner failed to establish cause for his defaults. In his 28 Objections, Petitioner seeks to present new arguments for cause and prejudice to 1 overcome the imposed procedural bars. (ECF No. 47 at 13–25.) Petitioner had ample 2 opportunity to address these arguments before the Magistrate Judge. Petitioner is 3 also represented by counsel and has not presented good cause why these arguments 4 are only now raised in his Objections. On these facts, the Court will exercise its 5 discretion and decline to consider these new arguments. See Brown v. Roe, 279 F.3d 6 742, 744 (9th Cir. 2002). 7 Finally, the Magistrate Judge did not misapply the law in determining that 8 Petitioner had not met his burden to establish actual innocence under Schlup v. Delo, [9] 513 U.S. 298 (1995). Petitioner’s argument that denying review would be a 10 miscarriage of justice relied on the alleged cumulative effect of the errors alleged. 11 (ECF No. 37 ¶ 186; ECF No. 40 at 14–15; ECF No. 47 at 6–7.) To fall within the limited 12 exception for a fundamental miscarriage of justice, Petitioner must show that “more 13 likely than not, in light of the new evidence, no reasonable juror would find him guilty 14 beyond a reasonable doubt—or, to remove the double negative, that more likely than 15 not any reasonable juror would have reasonable doubt.” House v. Bell, 547 U.S. 518 , 16 538 (2006). The cumulative effect of legal errors suggested by Petitioner does not 17 meet this burden. As noted by the Magistrate Judge, Petitioner has not 18 “supplement[ed] his constitutional claim with a colorable showing of factual 19 innocence,” as is necessary to fall within this limited exception. Casey v. Moore, 386 20 F.3d 896 , 921 n. 27 (9th Cir. 2004) (also quoting Herrera v. Collins, 506 U.S. 390 , 404 21 (1993) as stating that “[t]he fundamental miscarriage of justice exception is available 22 only where the prisoner supplements his constitutional claim with a colorable showing 23 of factual innocence.” (emphasis in original)). 24 III. Objections to Order on Petitioner’s First Request for Judicial Notice 25 Petitioner has also filed a document entitled “Petitioner’s Objections to 26 Magistrate Judge’s Order Denying Petitioner’s Request for Judicial Notice.” (ECF No. 27 46.) Therein, Petitioner objects to the Magistrate Judge’s denial of Petitioner’s 28 Request for Judicial Notice filed April 8, 2024. As an order on a non-dispositive 1 motion, the Court reviews the order to determine if it is clearly erroneous or contrary 2 to law. Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636 (b)(1)(A). 3 The Magistrate Judge’s ruling on Petitioner’s Request for Judicial Notice was 4 not clearly erroneous or contrary to law. In his Objections, Petitioner contends that 5 the materials in question may be considered as they were “relevant to the claims not 6 reached on the merits by the state.” (ECF No. 46.) Petitioner may be correct that 7 Cullen v. Pinholster, 563 U.S. 170 (2011), theoretically allows consideration of new 8 evidence provided the state court did not adjudicate the claim on the merits and the 9 requirements of 28 U.S.C. § 2254 (e) are satisfied. See Gonzalez v. Wong, 667 F.3d 10 965, 979 (9th Cir. 2011) (discussing the fact that the Pinholster court discussed but did 11 not decide where to draw the line between “new claims” and those adjudicated on the 12 merits); see also Pinholster, 563 U.S. at 187 n.10. But that argument is ultimately 13 irrelevant here; the Court has determined that procedural bars apply to prevent the 14 Court from addressing claims that were not reached on the merits by the state court.1 15 Accordingly, Petitioner’s Objections to the Magistrate Judge’s Order are overruled 16 and the Order is affirmed. 17 CONCLUSION 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Petitioner’s Request for Judicial Notice (ECF No. 48) is DENIED. 20 2. The Findings and Recommendations (ECF No. 45) are ADOPTED IN FULL. 21 3. Respondents’ Partial Motion to Dismiss (ECF No. 39) is GRANTED IN PART 22 AND DENIED IN PART as follows: 23 a. All of the ineffective assistance of trial counsel claims (ECF No. 37 at 15– 24 42); the ineffective assistance of appellate counsel claim (ECF No. 37 at 25 64–65); the due process claims based on the presentation of false [26] 1 The Court need not decide whether evidence outside the record is appropriately considered in the 27 cause and prejudice analysis for “new claims” not addressed on the merits by the state court. A review of the materials for which Petitioner requests judicial notice show that they would not alter the 28 Magistrate Judge’s determination that Petitioner had not established cause to excuse the defaults. 1 evidence (ECF No. 37 at 65-69); and, the cumulative error claims to the 2 extent that they are based on these claims (ECF No. 37 at 70) are 3 dismissed with prejudice as procedurally defaulted. 4 b. The prosecutorial misconduct subclaim based on the prosecutor's 5 alleged testimony during her questioning of Officer Duplissey (ECF No. 6 37 at 57 7 140(a)) is dismissed as procedurally defaulted based on 7 California's contemporaneous objection rule. 8 c. The prosecutorial misconduct subclaims based on: 1) introducing 9 evidence of the wrong network; 2) questioning solely to make 10 inferences; 3) asking Petitioner if he had a motive to lie; and, 4) invading 11 spousal privilege are dismissed as untimely filed. 12 d. The prosecutorial misconduct claim based on misstating the law on 13 unanimity is deemed timely filed based on the relation back doctrine, 14 and this portion of Respondents’ Motion to Dismiss is denied. 15 4. The Magistrate Judge’s Order filed March 20, 2025, denying Petitioner's first 16 Request for Judicial Notice (ECF No. 46) is AFFIRMED. 17 5. This matter is referred back to the Magistrate Judge for consideration of the 18 remaining claims in the third amended petition. [19] 50 IT IS SO ORDERED. 21 | Dated: _September 24, 2025 “Daal A CoO □□□□ Hon. Daniel alabretta 22 UNITED STATES DISTRICT JUDGE