Kory Jon Penn v. Josie Gastelo

Opinion

1 2 3 4 5 6 7 10 11 | KORY JON PENN, Case No. 5:19-cv-01266-PSG-MAA Petitioner, ORDER ACCEPTING REPORT 13 V. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 14 || JOSIE GASTELO, Warden, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 || records on file herein, and the Report and Recommendation of the United States 19 | Magistrate Judge. 20 The Court also has reviewed Petitioner’s objections to the Report and 21 | Recommendation, which the Court received and filed on October 2, 2020 22 || (“Objections”). (Objs., ECF No. 13.) As required by Federal Rule of Civil 23 || Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 24 || Report and Recommendation to which Petitioner specifically has objected. 25 In his Objections, Petitioner asserts that the Magistrate Judge overlooked the 26 || holding of People v. Vargas, 59 Cal. 4th 635 (2014). (Objs. 1). However, the 27 || Magistrate Judge discussed Vargas and explained that this state court decision does 28

1 || not entitle Petitioner to federal habeas relief. (See R&R, ECF No. 9, at 14-16). 2 || The Magistrate Judge correctly concluded that federal habeas relief generally is not 3 | available for state law errors, see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), 4 || and the state court decisions applying Vargas here were not arbitrary, capricious, or 5 || fundamentally unfair, so as to violate Petitioner’s federal due process or Eighth 6 || Amendment rights, see Richmond v. Lewis, 506 U.S. 40, 50 (1992); see also 7 || Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of 8 || fundamental unfairness, a state court’s misapplication of its own sentencing laws 9 || does not justify federal habeas relief.”). 10 The Court further agrees with the Magistrate Judge that granting leave to 11 | amend would be futile because Petitioner’s proposed new claims are both 12 | unexhausted and meritless. See Caswell v. Calderon, 363 F.3d 832, 837-39 (9th 13 || Cir. 2004) (conducting a two-part futility analysis reviewing both exhaustion of 14 || state court remedies and the merits of the proposed claim). Accordingly, 15 || Petitioner’s motion for leave to amend is DENIED. 16 The Court finds no defect of law, fact, or logic in the Report and 17 || Recommendation. The Court concurs with and accepts the findings, conclusions, 18 || and recommendations of the United States Magistrate Judge, and overrules the 19 || Objections. 20 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 21 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 22 || Petition and dismissing this action with prejudice. 23 24 | paTED: 727/220 25 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28 □