Gregory Bernard Lacy v. J. A. Lizarraga

Opinion

O

GREGORY BERNARD LACY, Case No. 5:19-cv-00583-DDP (KES)

Petitioner,

v. ORDER ACCE PTING FINDINGS AND

J.A. LIZARRAGA, Warden, RECOMMENDATIONS OF UNITED

Respondent. STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other

records on file herein, and the Report and Recommendation of the United States

Magistrate Judge. Further, the Court has engaged in a de novo review of those

portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendations of the Magistrate Judge. Respondent objects that, with respect to Counts 4, 5, and 6, Petitioner has not shown prejudice from the constitutional errors described in the Report and Recommendation. (See Dkt. 39 at 5, 14.) On collateral review, however, Respondent has the burden to show harmlessness. See Mays v. Clark, 807 F.3d 968, 980 (9th Cir. 2015). Furthermore, Respondent did not raise this issue before the Magistrate Judge or file any response to Petitioner’s supplemental memorandum, and thus has waived the harmless error argument. See Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (“We do not believe that the Magistrate Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”); (Rhodes v. Dittmann, 903 F.3d 646, 664 (7th Cir. 2018) (discussing government’s waiver of harmless error issue). “[R]elief is proper only if the federal court has ‘grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.’” Davis v. Ayala, 576 U.S. 257, 267–68 (2015), quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted). For the reasons set forth by the Magistrate Judge, that standard has been met with respect to all counts of conviction. Accordingly, the Petition is GRANTED. This matter is REMANDED to the Superior Court of Riverside County for retrial on Counts 1 through 6. October 26, 2021 DATED: ___________________ ____________________________________ Dean D. Pregerson UNITED STATES DISTRICT JUDGE