Jorge A. Hernandez v. S. Frauenheom

Opinion

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 JORGE A. HERNANDEZ, ) NO. CV 19-10892-AB (KS) 11 Petitioner, ) 12 ) v. ORDER ACCEPTING FINDINGS AND ) 13 ) RECOMMENDATIONS OF UNITED 14 S. FRAUENHEIM, Warden, ) STATES MAGISTRATE JUDGE ) 15 Respondent. ) 16 _________________________________ )

17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas 20 Corpus, all the records herein, and the Report and Recommendation of United States 21 Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of those 22 portions of the Report to which Petitioner has raised objections (“Objections”). For the reasons 23 below, Petitioner’s Objections are overruled. 24 25 First, Petitioner objects that he was not afforded adequate translation services during his 26 trial. (Objections at 3.) For the first time in his Objections, Petitioner alleges that the 27 translation services were inadequate because the interpreter sat at the back of the courtroom, 28 rather than at the defense table. (Id.) Because Petitioner is raising this factual allegation for 1 the first time in his Objections, the Court is not required to consider it. See United States v. 2 Howell, 231 F.3d 615, 623 (9th Cir. 2000). In any event, the alleged placement of the 3 translator at the back of the courtroom would not change the conclusion that Petitioner is not 4 entitled to habeas relief. The Supreme Court has never clearly held that a criminal defendant 5 has a constitutional right to a court-appointed interpreter. (Report at 15.) Moreover, even 6 under Ninth Circuit authority, Petitioner’s claim would fail because he identifies nowhere in 7 the record where he objected to the placement of the interpreter in the courtroom. (Id. at 17.) 8 9 Second, Petitioner objects that his counsel was ineffective for failing to present 10 mitigating evidence at sentencing, specifically, Petitioner’s lack of a significant criminal 11 record. (Objections at 4.) Petitioner’s objection fails to demonstrate prejudice under the 12 Strickland standard. The record shows that the trial court did consider Petitioner’s lack of a 13 criminal record but found it outweighed by several aggravating circumstances. (Report at 22.) 14 It therefore was not reasonably probable that, but for counsel’s alleged failure to present 15 information to the trial court that was already before it, Petitioner would have received a 16 different sentence. See Daire v. Lattimore, 818 F.3d 454, 466 (9th Cir. 2016) (petitioner must 17 demonstrate a reasonable probability that submission of the additional evidence would have 18 resulted in a successful sentencing motion and a concomitantly reduced sentence). 19 20 ORDER 21 22 IT IS ORDERED that: (1) the Petition is denied; and (2) Judgment shall be entered 23 dismissing this action with prejudice. 24 25 DATED: March 09, 2021

26 ___ ___ 27 ANDRÉ BIROTTE JR. 28 UNITED STATES DISTRICT JUDGE