UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

| KORY JON PENN, Case No. 5:19-cv-01266-PSG-MAA Petitioner, ORDER ACCEPTING REPORT 13 V. AND RECOMMENDATION OF UNITED STATES MAGISTRATE || JOSIE GASTELO, Warden, JUDGE Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other || records on file herein, and the Report and Recommendation of the United States | Magistrate Judge. The Court also has reviewed Petitioner’s objections to the Report and | Recommendation, which the Court received and filed on October 2, 2020 || (“Objections”). (Objs., ECF No. 13.) As required by Federal Rule of Civil || Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the || Report and Recommendation to which Petitioner specifically has objected. In his Objections, Petitioner asserts that the Magistrate Judge overlooked the || holding of People v. Vargas, 59 Cal. 4th 635 (2014). (Objs. 1). However, the || Magistrate Judge discussed Vargas and explained that this state court decision does

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

| paTED: 727/220

CHIEF UNITED STATES DISTRICT JUDGE