(HC) Lopez Diaz v. Covello, No. 2:2022cv00252 - Document 20 (E.D. Cal. 2022)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 11/27/2022 ORDERING the Clerk to substitute Patrick Covello as respondent in this action. IT IS RECOMMENDED that respondent's 11 motion to dismiss be gran ted, and respondent's third claim, identified above as the trial court's failure to give sua sponte instructions on lesser included offenses, be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
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(HC) Lopez Diaz v. Covello Doc. 20 Case 2:22-cv-00252-KJM-JDP Document 20 Filed 11/28/22 Page 1 of 2 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JAVIER LOPEZ DIAZ, 11 Petitioner, 12 13 v. PATRICK COVELLO, 14 Respondent. Case No. 2:22-cv-00252-KJM-JDP (HC) FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO DISMISS BE GRANTED OBJECTIONS DUE IN FOURTEEN DAYS ECF No. 11 15 16 Petitioner Javier Lopez Diaz, a state prisoner proceeding without counsel, filed a petition 17 for a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. His petition raises five claims: 18 (1) that there was insufficient evidence that the victim’s participation in the sexual acts was 19 impelled by duress; (2) ineffective assistance of trial counsel; (3) the trial court erred when it 20 failed to sua sponte instruct on the lesser included offenses of non-forcible oral copulation with a 21 minor and unlawful sexual intercourse with a minor; (4) California code section 1108 violated 22 Petitioner’s due process right to a fair trial by allowing the admission of sexual offenses that are 23 subject to proof by propensity; and (5) CALCRIM No. 1191A allowed jurors to infer guilt of the 24 charged offenses based on propensity, and it confused and mislead the jury about burden of proof. 25 ECF No. 1 at 16-17. Respondent contends that the third claim, failure to give the sua sponte 26 instruction, is unexhausted and must be deleted if the petition is to proceed. ECF No. 11 at 4. 27 Petitioner agrees that the claim is unexhausted and has agreed to delete the claim. ECF No. 19 at 28 1-2. 1 Dockets.Justia.com Case 2:22-cv-00252-KJM-JDP Document 20 Filed 11/28/22 Page 2 of 2 1 2 It is ORDERED that the Clerk of Court shall substitute Patrick Covello as respondent in this action. Further, it is RECOMMENDED that respondent’s third claim, identified above as the trial 3 4 court’s failure to give sua sponte instructions on lesser included offenses, be dismissed. If these 5 recommendations are adopted, I will set a schedule for respondent to answer the remaining, 6 exhausted claims. 7 These findings and recommendations are submitted to the U.S. district judge presiding 8 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 9 service of the findings and recommendations, the parties may file written objections to the 10 findings and recommendations with the court and serve a copy on all parties. That document 11 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 12 presiding district judge will then review the findings and recommendations under 28 U.S.C. 13 § 636(b)(1)(C). 14 15 IT IS SO ORDERED. 16 17 18 Dated: November 27, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2
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