Justin Salmen v. RJDCF Warden

• Court: District Court, C.D. California
• Decided: January 10, 2024
• Docket: 2:21-cv-08652
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JUSTIN SALMEN, Case No. 2:21-cv-08652-AB (JPR)

12 Petitioner, ORDER ACCEPTING FINDINGS AND v. RECOMMENDATION OF UNITED 13 STATES MAGISTRATE JUDGE 14 JAMES HILL, Acting Warden, 15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 19 records on file, and the Report and Recommendation (“Report”) of the United 20 States Magistrate Judge. Further, the Court has engaged in a de novo review of 21 those portions of the Report to which objections have been made. 22 The Report recommends denial of the Petition and its supplement and the 23 dismissal of the action with prejudice. (ECF No. 73.) Petitioner has filed 24 objections to the Report. (ECF Nos. 75 and 76.) For the following reasons, 25 Petitioner’s objections do not warrant a change in the Magistrate Judge’s findings 26 or recommendation. 27 Petitioner objects that the prosecutor was “a known framer engaging in 28 perjury to take advantage of the no accountability for prosecutors[’] way of justice.” 1 (ECF No. 75 at 1-2 (citing 3 Reporter’s Transcript at 1008).) Petitioner appears to be arguing that the prosecutor misstated the evidence by questioning Petitioner 2 about going to a “kitchenette” to retrieve the murder weapon, which later became a 3 “kitchen,” and which later “vanished altogether.” (Id. at 2.) As the Report 4 reasonably found, no prosecutorial misconduct was shown in this regard because 5 Petitioner gave a pretrial account admitting he used a “kitchen thing” or “kitchen 6 knife” to stab the victim. (ECF No. 73 at 28-29.) 7 Petitioner relatedly objects that there was no evidence of premeditation 8 because he did not take “time to think” by going to a kitchen or kitchenette to 9 retrieve the knife he used to commit the murder. (ECF No. 75 at 2-3.) This 10 objection ignores the Report’s finding that the manner in which Petitioner killed the 11 victim, by stabbing him close to 40 times, was sufficient by itself to establish 12 premeditation. (ECF No. 73 at 22 (citing Drayden v. White, 232 F.3d 704, 709 (9th 13 Cir. 2000).) The objection also ignores the California Court of Appeal’s finding 14 that Petitioner’s motive to kill the victim, who had a history of making racist 15 comments and insulting Petitioner’s girlfriend, was an additional factor establishing 16 premeditation. (ECF No. 9-1 at 14-15.) 17 Petitioner objects that his trial counsel was ineffective for failing to 18 investigate a witness named Jason Akers, who would have testified that the victim 19 had said Petitioner should be killed. (ECF No. 76 at 5-6.) This objection ignores 20 the Report’s finding that Petitioner was unaware of any plans to harm him, making 21 any statements or rumors to that effect irrelevant to his state of mind at the time of 22 the murder. (ECF No. 73 at 57-58.) 23 Petitioner objects that his counsel was ineffective for failing to have 24 Petitioner’s false confession suppressed. (ECF No. 76 at 7.) As the Report found, 25 however, counsel told Petitioner that the confession included “good statements” 26 supporting a self-defense theory. (ECF No. 73 at 42, 45.) Because counsel’s 27 statement reflected an informed and strategic decision not to challenge the 28 1 || admission of the confession, that decision is virtually unchallengeable. (/d. at 42 2 || (citing Strickland v. Washington, 466 U.S. 668, 690 (1984).) 3 Petitioner relatedly objects that his counsel should have been aware the 4 || confession was coerced because Petitioner had an eye injury and was sleep- 5 || deprived. (ECF No. 76 at 7-8.) As the Report reasonably found, however, the 6 || record did not support that assertion, Petitioner turned himself in to the police, he 7 || did not request medical attention during the interview, and the interview lasted less 8 || than 23 minutes. (ECF No. 73 at 43-47.) 9 In sum, Petitioner’s objections are overruled. 10 IT IS ORDERED that (1) the Report and Recommendation of the Magistrate 11 || Judge is accepted and adopted; and (2) Judgment shall be entered denying the 12 |) Petition and its supplement and dismissing this action with prejudice. 13 14 || DATED: January 10, 2024 (nd2-— 16 - M UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28