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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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FRANCIS TULANDA, ) Case No. 2:24-cv-03997-CAS-GJS
11 )
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12 Petitioner ) ORDER ACCEPTING FINDINGS
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) AND RECOMMENDATIONS OF
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v. ) UNITED STATES MAGISTRATE
)
14 ) JUDGE
ROBERTO A. ARIAS, Acting Warden, )
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16 Respondent. )
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17
18 I. INTRODUCTION
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On November 21, 2024, United States Magistrate Judge Gail J. Standish (the
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“Magistrate Judge”) issued a Report and Recommendation denying petitioner
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Francis Tulanda’s (“Petitioner”) petition for a writ of habeas corpus. Dkt. 14
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(“R&R”). On December 4, 2024, Petitioner, who is represented by counsel, filed
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his objections to the R&R. Dkt. 15 (“Obj.”).
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Pursuant to
28 U.S.C. § 636
(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court
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has reviewed the records and files herein, the R&R of the Magistrate Judge, and
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Petitioner’s Objections thereto. After having made a de novo determination of the
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1 portions of the R&R to which Petitioner’s Objections were directed, the Court
2 accepts the report, findings, and recommendations of the Magistrate Judge.
3
II. BACKGROUND
4
5 On August 3, 2021, Petitioner was sentenced to life in prison without the
6 possibility of parole after being convicted of first-degree murder (Cal. Penal Code
7 § 187(a)) and first-degree residential robbery (
Cal. Penal Code § 211
). R&R at 2.
8 Additionally, the jury “found true the special circumstances allegations that the
9 murder was committed during a robbery and burglary (
Cal. Penal Code §
10
190.2(a)(17)) and that Petitioner used a dangerous or deadly weapon and inflicted
11 great bodily harm during the robbery (
Cal. Penal Code §§ 12022
(b)(1) &
12 12022.7(a)).”
Id.
13 Thereafter, Petitioner appealed his conviction to the California Court of
14 Appeal.
Id.
On December 12, 2022, the California Court of Appeal issued an
15 opinion that affirmed the judgment of conviction.
Id.
On January 13, 2023,
16 Petitioner filed a petition for review before the California Supreme Court.
Id.
On
17 February 15, 2023, the California Supreme Court denied the petition.
Id.
18 On May 14, 2024, Petitioner filed a
28 U.S.C. § 2254
petition for writ of
19 habeas corpus, asserting four claims for relief. Dkt. 1. Petitioner argues that his
20 constitutional rights were violated when: (1) the trial court denied his motion for
21 judgment of acquittal, as the prosecution failed to prove the offenses and the
22 special circumstances findings; (2) the trial court admitted a recording from a
23 Perkins operation, as described in Illinois v. Perkins,
496 U.S. 292, 294
(1990); (3)
24 the trial court admitted the recorded statements made to the Perkins agent by
25 Christopher Brandon (“Brandon”), Petitioner’s accomplice; and (4) the trial court
26 admitted the testimony of Detective John Duncan (“Detective Duncan”) regarding
27 Petitioner’s recorded statements to the Perkins agent. Id. at 11, 19, 23, 26.
1 On November 21, 2024, the Magistrate Judge issued the instant R&R. R&R
2 at 1. The Magistrate Judge recommended that the Court dismiss Petitioner’s
3 claims, finding that Petitioner failed to demonstrate that the California Court of
4 Appeal’s decision was contrary to federal law or an objectively unreasonable
5 application of any federal law, or that it was based on an unreasonable
6 determination of the facts. Id. at 17, 22, 26. On December 4, 2024, Petitioner filed
7 his Objections. Obj. at 1. Because the facts at issue regarding Petitioner’s claims
8 are comprehensively set forth in the R&R, the Court does not repeat them unless
9 relevant to the Court’s decision. R&R at 2-8.
10
III. LEGAL STANDARD
11
12 “A judge of the court may accept, reject, or modify, in whole or in part, the
13 findings or recommendations made by the magistrate judge.”
28 U.S.C. §
14
636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must
15 determine de novo any part of the magistrate judge’s disposition that has been
16 properly objected to,” and “[t]he district judge may accept, reject, or modify the
17 recommended disposition; receive further evidence; or return the matter to the
18 magistrate judge with instructions”). Proper objections require “specific written
19 objections to the proposed findings and recommendations” of the magistrate judge.
20 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination
21 of those portions of the report or specified proposed findings or recommendations
22 to which objection is made.”
28 U.S.C. § 636
(b)(1)(C); see also United States v.
23 Reyna-Tapia,
328 F.3d 1114, 1121
(9th Cir. 2003) (“The statute makes it clear that
24 the district judge must review the magistrate judge’s findings and
25 recommendations de novo if objection is made, but not otherwise.”). Where no
26 objection has been made, arguments challenging a finding are deemed waived.
27 See
28 U.S.C. § 636
(b)(1)(C) (“Within fourteen days after being served with a
1 copy, any party may serve and file written objections to such proposed findings
2 and recommendations as provided by rules of court.”). Moreover, “[o]bjections to
3 a R&R are not a vehicle to relitigate the same arguments carefully considered and
4 rejected by the Magistrate Judge.” Chith v. Haynes, No. C18-5342 BHS,
2021 WL
5
4744596, at *1 (W.D. Wash. Oct. 12, 2021).
6 Under
28 U.S.C. § 2254
(d), as amended by the Antiterrorism and Effective
7 Death Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been
8 “adjudicated on the merits” cannot obtain federal habeas relief unless that
9 adjudication: (1) resulted in a decision that was contrary to, or involved an
10 unreasonable application of, clearly established Federal law, as determined by the
11 Supreme Court of the United States; or (2) resulted in a decision that was based on
12 an unreasonable determination of the facts in light of the evidence presented in the
13 State court proceeding.
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IV. DISCUSSION
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16 In his Objections, Petitioner maintains that he is entitled to habeas relief as
17 to each of his four claims. See generally Obj.
18 The Court will address each claim in turn. However, as an initial matter, the
19 Court notes that the Objections are nearly all addressed by the Magistrate Judge in
20 the R&R, casting doubt on their validity. The Court reiterates that “[o]bjections to
21 a R&R are not a vehicle to relitigate the same arguments carefully considered and
22 rejected by the Magistrate Judge.” Chith,
2021 WL 4744596
, at *1.
23 A. Ground One
24 In regards to his first claim, Petitioner objects to the Magistrate Judge’s
25 finding that the trial court’s denial of the motion for judgment of acquittal, based
26 on insufficiency of the evidence, is not a cognizable issue on federal habeas
27 review. Obj. at 2. Petitioner maintains that he raises a federal claim because “his
1 due process rights were violated.”
Id.
Petitioner repeats his argument that “the
2 only evidence that Petitioner retrieved any money from the residence was
3 Brandon’s testimony,” which was not corroborated.
Id. at 4
. Further, Petitioner
4 repeats his argument that there was no evidence that the money at issue was stolen.
5
Id.
Petitioner focuses on his own testimony, which indicated that the victim had
6 stolen the money from Petitioner, not the other way around, and that during the
7 alleged “robbery,” Petitioner sought only to retrieve his own money.
Id.
8 The Court is not persuaded by this Objection. First, the Court agrees with
9 the Magistrate Judge’s finding that, to the extent this claim is based on the validity
10 of the trial court’s denial of Petitioner’s motion for judgment of acquittal under
11 California Penal Code § 1118.1, it is not cognizable on federal habeas review.
12 R&R at 14. As noted by the United States Supreme Court, “federal habeas corpus
13 relief does not lie for errors of state law.” Estelle v. McGuire,
502 U.S. 62
, 67
14 (1991) (citations and quotations omitted). See also Lopes v. Campbell,
408 F.
15
App'x 13, 15 (9th Cir. 2010) (finding that claim under California Penal Code §
16 1118.1 is a “state law claim[] that [is] not cognizable on federal habeas review”).
17 Second, the Court agrees with the Magistrate Judge that, to the extent this
18 claim is based on Fourteenth Amendment due process concerns, Petitioner has not
19 met the standard identified in Jackson v. Virginia,
443 U.S. 307, 319
(1979). As
20 correctly noted by the Magistrate Judge, under Jackson, which determines the
21 sufficiency of evidence to support a jury finding, “the relevant question is whether,
22 after viewing the evidence in the light most favorable to the prosecution, any
23 rational trier of fact could have found the essential elements of the crime beyond a
24 reasonable doubt.” Jackson,
443 U.S. at 319
(emphasis in original). Put another
25 way, “the only question under Jackson is whether [the jury’s] finding was so
26 insupportable as to fall below the threshold of bare rationality.” Coleman v.
27 Johnson, 566
U.S. 650, 656 (2012).
1 The Magistrate Judge correctly found that, based on the evidence viewed in
2 the light most favorable to the prosecution, a rational trier of fact could have found
3 that Petitioner committed the charged offenses with the special circumstances at
4 issue. A rational trier of fact was entitled to credit Brandon’s statements on the
5 Perkins recording, in which he “told the Perkins agent that Petitioner got ‘half’ of
6 the $60,000 back from [the victim] from ‘in the closet under the carpet.’” R&R at
7 15. Assuming arguendo that this was the only evidence to establish the taking
8 element of robbery and it was uncorroborated, the Magistrate Judge correctly
9 found that “the federal Constitution… does not require corroboration of
10 accomplice testimony.”
Id.
See Laboa v. Calderon,
224 F.3d 972, 979
(9th Cir.
11 2000) (explaining that corroboration of accomplice testimony “is not required by
12 the Constitution or federal law”); United States v. Necoechea,
986 F.2d 1273
, 1282
13 (9th Cir. 1993) (“The uncorroborated testimony of an accomplice is sufficient to
14 sustain a conviction unless it is incredible or insubstantial on its face.”). The Court
15 agrees with the Magistrate Judge that “Petitioner has made no argument that
16 Brandon’s statements were facially incredible or insubstantial,” even after having
17 the opportunity to present Objections. R&R at 16.
18 Further, contrary to Petitioner’s Objection, and as explained by the
19 Magistrate Judge, Brandon’s statements on the Perkins recording were not the only
20 evidence of Petitioner taking the money at issue. R&R at 16. “Petitioner testified
21 in his own defense that, after incapacitating [the victim], he found a safe in the
22 floor of the guest bedroom containing $20,000 and he took it.”
Id.
As for the issue
23 of whether the money belonged to Petitioner or the victim, the Magistrate Judge
24 correctly determined that “the jury was free to believe Petitioner’s testimony that
25 he stole the money and safe from [the victim] and disbelieve Petitioner’s testimony
26 that he was simply attempting to recover his own property.”
Id.
See United States
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1 v. Clevenger,
733 F.2d 1356, 1359
(9th Cir. 1984) (“The jury was free to accept or
2 reject [the witness’s] testimony in whole or in part.”).
3 In sum, neither the purported lack of corroboration of Brandon’s statements
4 nor Petitioner’s testimony about the money belonging to Petitioner demonstrate
5 that Petitioner’s due process rights were violated under Jackson. Therefore, the
6 Magistrate Judge correctly found that Petitioner failed to show that the California
7 Court of Appeal unreasonably applied any federal law in regards to his first claim.
8 B. Grounds Two and Three (Perkins Operation)
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In regards to his second claim, Petitioner objects to the Magistrate Judge’s
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finding that the fact that parts of the Perkins recording were “unintelligible” does
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not constitute a due process violation. Obj. at 5. Petitioner asserts that there were
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“374 parts of the audio recording of the Perkins operation which were ‘inaudible.’”
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Id. at 6. In his Objections, as in his petition, Petitioner cites several cases
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regarding California evidence law and the admissibility of partially unintelligible
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tapes. Id. at 5-6. However, the Magistrate Judge correctly found that “federal
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habeas relief is unavailable for violations of state law.” R&R at 19 (citing Estelle
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v. McGuire,
502 U.S., 67
-68 (1991); Holley v. Yarborough,
568 F.3d 1091
, 1101
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(9th Cir. 2009)). The following statements from the Magistrate Judge continue to
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be accurate: “Petitioner points to no federal case law suggesting that the admission
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of an audio recording that is partially unintelligible violates due process.”
Id.
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“Nor is the Court aware of any such authority.”
Id.
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Additionally, Petitioner argues that admission of only parts of the recording
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was “extremely prejudicial… because the jury was able to draw impermissible
24
inferences not supported by the actual contents of the recording.” Obj. at 7.
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Insofar as Petitioner argues that the admission violated his due process rights, the
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Court agrees with the Magistrate Judge that Petitioner has not met the high
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standard to establish this violation in this context. R&R at 20. “Only if there are
1 no permissible inferences the jury may draw from the evidence can its admission
2 violate due process.” Jammal v. Van de Kamp,
926 F.2d 918, 920
(9th Cir. 1991)
3 (emphasis in original). “Even then, the evidence must ‘be of such quality as
4 necessarily prevents a fair trial.’”
Id.
5 Petitioner contends, in a conclusory manner, that “admission of these
6 recordings prevented Petitioner from having a fair trial,” because without them,
7 “the jury would not have heard Brandon’s statements against Petitioner or
8 Petitioner’s statements[,] which were arguably inconsistent with [Petitioner’s] trial
9 testimony.” Obj. at 7. This argument does not indicate that there were no
10 permissible inferences that the jury could draw from the recordings or that the
11 evidence was of such a low quality as to prevent a fair trial. Rather, the Magistrate
12 Judge correctly determined that the Perkins recordings “were plainly relevant and
13 allowed the jury to reasonably infer Petitioner’s motive for and active participation
14 in the murder and robbery.” R&R at 20. Further, “Petitioner testified at trial, and
15 thus had the opportunity to explain any inaudible parts of the recording or address
16 why [it] was not reliable.”
Id.
See United States v. Hurd,
642 F.2d 1179
, 1183
17 (9th Cir. 1981) (“Even if part of the tape is inaudible or missing, it is admissible if
18 the trial judge believes that it has probative value.”).
19 In regards to his third claim, Petitioner does not object to the Magistrate
20 Judge’s finding that errors under California Evidence Code § 1230 are not
21 cognizable under habeas. R&R at 20. Petitioner also does not object to the
22 Magistrate Judge’s finding that the admission of Brandon’s statements could not
23 have violated due process under the habeas standard, because the United States
24 Supreme Court “has not yet made a clear ruling that admission of irrelevant or
25 overtly prejudicial evidence constitutes a due process violation sufficient to
26 warrant issuance of the writ.” Holley v. Yarborough,
568 F.3d 1091, 1101
(9th
27 Cir. 2009). Finally, Petitioner did not raise any issues under the Confrontation
1 Clause in his petition, and does not object to the Magistrate Judge’s finding that,
2 even if Petitioner had asserted that the Confrontation Clause was violated, this
3 claim would fail.1 R&R at 5, n.1. Therefore, any challenges to these findings are
4 deemed waived. See
28 U.S.C. § 636
(b)(1)(C).
5 Accordingly, the Magistrate Judge correctly concluded that Petitioner failed
6 to show that the California Court of Appeal’s decision on his second and third
7 claims was contrary to federal law, an unreasonable application of federal law, or
8 an unreasonable determination of the facts. R&R at 22.
9 C. Ground Four
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In regards to his fourth claim, Petitioner objects to the Magistrate Judge’s
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findings that (1) violations of California’s state evidence law are not cognizable on
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habeas; and (2) even assuming that the improper admission of lay testimony by
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Detective Duncan could constitute a due process violation, “this is not such a
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case.” R&R at 24; Obj. at 8. Petitioner argues that he has “sufficiently pled that
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his due process rights were violated.” Obj. at 8. According to Petitioner,
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Detective Duncan improperly “invaded the jury’s province,” “drew impermissible
17
legal conclusions,” and “editorializ[ed]” Petitioner’s statements in the Perkins
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recording on behalf of the government.
Id. at 9-10
.
19
The Court is not persuaded by this Objection. Petitioner continues to cite to
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judicial decisions regarding only state law. See Obj. at 9-10. The Magistrate
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Judge, citing Langford v. Day,
110 F.3d 1380, 1389
(9th Cir. 1996), correctly
22
23
1 Further, the Court agrees with the Magistrate Judge’s finding that the admission
24 of Brandon’s recorded statements did not violate the Confrontation Clause. This is
25 because “Brandon’s statements were not testimonial[,] as Brandon unwittingly
believed he was speaking with a fellow inmate and not a government agent
26 conducting an interrogation that would later be used in court.” R&R at 5, n.1. See
27 Davis v. Washington,
547 U.S. 813, 825
(2006) (noting “statements made
unwittingly to a Government informant” are “clearly non-testimonial”).
1 || found that “Petitioner may not ‘transform a state-law issue into a federal one
2 ||merely by asserting a violation of due process.’” R&R at 24.
3 Even assuming arguendo that Detective Duncan’s testimony could pose a
4 || due process issue, Petitioner’s Objection does not refute the Magistrate Judge’s
5 || findings on this issue. First, because “the jury was instructed that it was not
6 || obligated to accept Detective Duncan’s testimony about the meaning of
7 || Petitioner’s and Brandon’s statements in the audio recordings and should make its
8 determination about the weight to give his opinion,” there is no reason to
9 || believe that the jurors, who also heard the recordings, “failed to make their own
10 || independent assessment.” R&R at 25. Second, because of the “strength of the
11 |/evidence as a whole” in Petitioner’s case, any error in the admission of Detective
12 || Duncan’s opinion did not have a “‘substantial and injurious effect’ on the verdict.”
13 ||Id. This is because “the most incriminating evidence against Petitioner was his
14 || own statements” to the Perkins agent, as well as Petitioner’s admission at trial that
15 || he fought the victim at his house and then went upstairs to retrieve the safe with
16 $20,000 in it.
Id.
The Court agrees with the Magistrate Judge on both accounts.
17 Accordingly, the Magistrate Judge correctly found that Petitioner failed to
18 || show that the California Court of Appeal’s decision on his fourth claim was
19 || contrary to federal law, an unreasonable application of federal law, or an
20 || unreasonable determination of the facts. R&R at 26.
71 V. CONCLUSION
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23 Having completed its review, the Court ACCEPTS the findings and
24 ||recommendations set forth in the R&R. Accordingly, Petitioner’s petition for a
25 || writ of habeas corpus is DENIED. Aue ila 4 by de
26 || Dated: August 22, 2025 __
HON. CHRISTINA A. SNYDER
27 UNITED STATES DISTRICT JUDGE
10Case Information
- Court
- C.D. Cal.
- Decision Date
- August 22, 2025
- Status
- Precedential