Edward Buentiempo v. H. Lackner, No. 2:2013cv09121 - Document 24 (C.D. Cal. 2014)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Beverly Reid O'Connell for Report and Recommendation (Issued), 19 . IT IS ORDERED that the Petition is denied without leave to amend, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice. (See Order for details) (bem)
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Edward Buentiempo v. H. Lackner Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EDWARD BUENTIEMPO, 10 Petitioner, 11 vs. 12 HEIDI M. LACKNER, Warden, 13 Respondent. 14 ) Case No. CV 13-9121-BRO (JPR) ) ) ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S. ) MAGISTRATE JUDGE ) ) ) ) ) 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the 17 Petition, records on file, and Report and Recommendation of the 18 U.S. Magistrate Judge. On October 1, 2014, Petitioner filed 19 objections to the R&R, in which he mostly simply repeats the 20 arguments in his Petition and Traverse. Most of Petitioner’s 21 objections relate to his claims centering on the photo-lineup 22 identifications made by the two victims; Petitioner alleges that 23 neither witness spoke English, the record is unclear on who 24 translated for them during the identification procedures, the 25 identifications were unduly suggestive as a result, and his 26 lawyer was ineffective for not challenging the identifications 27 more vigorously. The Magistrate Judge reasonably rejected all of 28 these arguments in the Report and Recommendation. (See R&R at 9- 1 Dockets.Justia.com 1 16, 20-24.) At about the same time that the Magistrate Judge 2 filed the Report and Recommendation, the Ninth Circuit Court of 3 Appeals issued a decision affirming at least part of the 4 reasoning in it: no clearly established law holds that a witness 5 must be given an admonition before viewing a photo lineup, see 6 United States v. Carr, 761 F.3d 1068, 1076 (9th Cir. 2014), and 7 therefore no habeas relief was available on Petitioner’s claims 8 asserting that even if an admonition was given, the witnesses 9 couldn’t understand it (see R&R at 14). For all these reasons, 10 the Court accepts the findings and recommendations of the 11 Magistrate Judge. 12 IT IS ORDERED that the Petition is denied without leave to 13 amend, Petitioner’s request for an evidentiary hearing is denied, 14 and Judgment be entered dismissing this action with prejudice. 15 16 DATED: October 21, 2014 17 BEVERLY REID O’CONNELL U.S. DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2
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