Medina v. Sullivan

Filing 28

FINDINGS and RECOMMENDATIONS to Deny The Petition for Writ of Habeas Corps 1 ; FINDINGS and RECOMMENDATIONS to Dismiss as Moot Petitioner's Motion for Ruling 27 , to Enter Judgment for Respondent, and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 8/23/11: Matter referred to Judge Wanger; Objections Due thirty (30) days after being served with a copy of the findings and recommendations. (Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
RAY MEDINA,
11
Petitioner,
12
13
14

v.
W. J. SULLIVAN,

15

Respondent.

16

)
)
)
)
)
)
)
)
)
)
)
)

1:09-cv—00488-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS AS MOOT PETITIONER’S
MOTION FOR RULING (DOC. 27),
TO ENTER JUDGMENT FOR RESPONDENT,
AND TO DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY

17
Petitioner is a state prisoner proceeding pro se and in
18
forma pauperis with a petition for writ of habeas corpus pursuant
19
to 28 U.S.C. § 2254.

The matter has been referred to the

20
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
21
Rules 302 and 304.

Pending before the Court is the petition,

22
which was filed on March 16, 2009.

Respondent filed an answer,

23
which was titled as an answer to an order to show cause, on
24
January 11, 2010.

Petitioner filed a traverse on October 20,

25
2010.
26
I.

Jurisdiction

27
Because the petition was filed after April 24, 1996, the
28
1

1

effective date of the Antiterrorism and Effective Death Penalty

2

Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

3

v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

4

(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

5

A district court may entertain a petition for a writ of

6

habeas corpus by a person in custody pursuant to the judgment of

7

a state court only on the ground that the custody is in violation

8

of the Constitution, laws, or treaties of the United States.

9

U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

10

375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

11

16 (2010) (per curiam).

12

Lindh

28

Petitioner alleged that at the time the petition was filed,

13

he was an inmate of the California Correctional Institution (CCI)

14

at Techachapi, California, serving a state court sentence.

15

Petitioner alleged that he suffered violations of his right to

16

due process of law resulting from a delayed prison disciplinary

17

hearing.

18

battery on a peace officer and was assessed a work time credit

19

loss of 150 days.

20

Constitution are alleged.

21

Petitioner was found guilty of having committed a

(Pet. 9.)

Thus, violations of the

A due process claim concerning good time or other rules

22

administered by a prison or penal administrator that challenges

23

the duration of a sentence is a cognizable claim of being in

24

custody in violation of the Constitution pursuant to 28 U.S.C. §

25

2241(c)(3).

26

(1985) (determining a procedural due process claim concerning

27

disciplinary procedures and findings); Wilkinson v. Dotson, 544

28

U.S. 74, 88 (2005) (Kennedy, J., dissenting).

See, e.g., Superintendent v. Hill, 472 U.S. 445, 454

2

If a

1

constitutional violation has resulted in the loss of time

2

credits, it affects the duration of a sentence, and the violation

3

may be remedied by way of a petition for writ of habeas corpus.

4

Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).

5

Additionally, the decision challenged was made at Tehachapi,

6

California, which is located within the jurisdiction of this

7

Court.

8
9

28 U.S.C. §§ 84, 2254(a), 2241(a), (d).

Respondent Warden James Walker answered the petition.
14.)

(Doc.

Petitioner thus named as a respondent a person who had

10

custody of the Petitioner within the meaning of 28 U.S.C. § 2242

11

and Rule 2(a) of the Rules Governing Section 2254 Cases in the

12

United States District Courts (Habeas Rules).

13

California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

14

See, Stanley v.

Accordingly, the Court concludes that it has subject matter

15

jurisdiction over the proceeding and personal jurisdiction over

16

the Respondent.

17

II.

18

Petitioner is serving a sentence of twenty-two (22) years

Facts

19

pursuant to convictions of robbery, auto theft, and “hit and run”

20

sustained in Los Angeles County in 2005.

21

29.)

22

(Pet., Ex. A, doc. 1,

With respect to the disciplinary proceeding in question, the

23

last reasoned opinion of the state courts was the unpublished

24

opinion of the Court of Appeal of the State of California, Fifth

25

Appellate District (DCA), issued in a habeas proceeding filed by

26

Petitioner.

27
28

The opinion states the following:

On August 16, 2005, a correctional officer issued a rules
violation report (RVR; also referred to as a
CDC Form 115) charging Medina, a prison inmate, with
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

battery on a peace officer. A copy of the RVR was given
to Medina on August 25, 2005. Following a disciplinary
hearing held on September 24, 2005, the hearing officer
found Medina guilty and assessed a forfeiture of
150 days work time credits.
Medina filed an administrative appeal challenging the
disciplinary decision, contending, among other things,
that he was denied the presence of a requested witness
and the hearing was not timely. In a second level
appeal response, the Department granted the appeal in
part and issued a modification order. The response,
signed by the chief deputy warden, stated that all
disciplinary time constraints were met pursuant to
Title 15 of the California Code of Regulations, as
Medina was issued the first copy of the RVR within 15
days from the date staff discovered the information
leading to the charges, he was issued all
non-confidential documentation relied on at the hearing
at least 24 hours before the hearing, and the hearing
was conducted within 30 days of the date he received
his first copy of the RVR. The response also stated,
however, that there had been a due process error when
the hearing officer denied Medina a witness he
requested, and in the interest of justice “this RVR
will be reissued and reheard,” and a modification order
generated to ensure Medina would be afforded the right
to witnesses at the hearing. The response further
stated: “This section of the appeal is GRANTED, due to
the fact the disposition is being vacated and the RVR
will be reissued and reheard. Additionally, [Medina]
will be provided another opportunity to present his
defense at the hearing. Time constraints were not met
for this RVR, therefore credit forfeiture may not be
assessed if found guilty at the rehearing.” (Emphasis
in original.)

19
20
21
22
23
24
25
26
27
28

On January 11, 2006, a modification order was issued
which stated that as a result of a “Level II Decision,”
Medina's appeal had been granted in part and the RVR
should be reissued and reheard due to denial of a
witness. The RVR was reissued on January 23, 2006, and
a copy was given to Medina on January 25, 2006. A
disciplinary hearing on the reissued RVR was held on
February 24, 2006, at which Medina was allowed his
requested witnesses. After considering the evidence,
the senior hearing officer (SHO) found Medina guilty
and assessed a forfeiture of 150 days work time credits.
In discussing the modification order, the SHO noted
the second level appeal response indicated the time
frames in the original hearing were violated, thereby
precluding the assessment of a credit forfeiture in
this hearing, but he had reviewed the original hearing
and “the alleged violation of time frames is unfounded,”
as the date of discovery was August 16, 2005, the first
4

1
2

RVR was issued on August 25, 2005, and the hearing was
held on September 24, 2005. The SHO concluded that the
times frames were met and credit forfeiture was
appropriate.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Medina filed a petition for writ of habeas corpus in
the superior court challenging the assessed credit loss
on the grounds the first disciplinary hearing was
untimely and the guilt finding was not supported by the
evidence. The superior court issued an order to show
cause and appointed counsel for Medina. While the court
rejected Medina's sufficiency of the evidence claim, it
found a prima facie case for relief was stated based on
the discrepancy between the statement in the second
level appeal response prohibiting forfeiture of credits
on rehearing and the SHO's re-assessment of credits
following the second disciplinary hearing. The court
therefore granted the petition in part and issued an
order to show cause “limited to the issue of whether or
not the hearing officer possesses the power to forfeit
his credits in conjunction with the re-hearing more
than 30 days after the misconduct.” Specifically, the
court ordered the Department to show cause why Medina
may be deprived of work credits “for the reasons
articulated by [the SHO] in his February 24th, 2006,
hearing report or why the credits shall not be restored
as ordered in the January 3, Response ...”
The Department filed a return, arguing the first
disciplinary hearing was timely and the SHO at the
second disciplinary hearing could properly conclude he
was authorized to consider and reject Medina's time
constraints claim. In response, Medina pointed out that
the first disciplinary hearing “was flawed by a due
process violation,” and argued nothing in the
California Code of Regulations provides that “a
defective, nullified hearing somehow acts to toll the
mandatory time-frames” contained in California Code of
Regulations, title 15, section 3320, subdivision (b),
which states that charges shall be heard within 30 days
from the date the inmate is provided a copy of the CDC
Form 115.

22
23
24
25
26
27
28

The trial court issued an order granting the petition.
The court noted the issue could be decided without a
hearing because it involved interpretation of
regulations. The court found the first disciplinary
hearing was conducted within the time guidelines set
forth in section 3320, subdivision (b), but the January
25, 2006, service of the reissued RVR was untimely
because it was not served within 15 days of the August
16, 2005 misconduct. The court concluded the failure to
serve the reissued RVR within that time period deprived
the Department of the ability to forfeit Medina's
credits and ordered the Department to restore them.
5

1

10

The Department filed a request for reconsideration of
the order, asserting reconsideration was appropriate
because it did not know from Medina's petition that it
should address the timeliness of the second
disciplinary hearing. The Department pointed out, for
the first time, that under section 3084.5, subdivision
(h)(3), when a disciplinary hearing is ordered reissued
and reheard, the time constraints begin on the date the
new CDC Form 115 is written, and since here the CDC
Form 115 was reissued on January 23, 2006, and provided
to Medina less than 15 days later, on January 25, 2006,
it was timely. Medina filed an opposition to the
request for reconsideration. The superior court denied
the Department's request for reconsideration, noting
that while section 3084.5, subdivision (h)(3) “does
apply to commence new time periods again after an
appeal results in the vacation of a disciplinary
hearing,” this was not new law and therefore did not
warrant reconsideration.

11

In re Medina, No. F054322, 2008 WL 4968020, *1-*2 (Nov. 24, 2008)

12

(footnotes omitted).1

2
3
4
5
6
7
8
9

13

In its unpublished opinion of November 24, 2008, the DCA

14

determined that with respect to both rounds of disciplinary

15

proceedings, the prison administrators complied with California

16

statutes and regulations requiring prison administrators to

17

provide the inmate with a copy of the CDC Form 115 within fifteen

18

days after the discovery of information leading to the charges,

19

and to hold a disciplinary hearing within thirty days after the

20

inmate’s receipt of the CDC Form 115.

21

its decision, the DCA relied on and interpreted Cal. Code Regs.,

22

tit. 15, §§ 3084.5 and 3320, which provided that the time limits

23

on disciplinary hearings would begin to run anew if a RVR were

24

re-issued.

Id. at *3-*4.

In reaching

On December 24, 2008, the DCA opinion was modified on

25
26
27
28

1

The factual summary is taken from the unpublished opinion in In re
Medina, No. F054322, 2008 WL 4968020, *1-2 (Nov. 24, 2008). See, Galvan v.
Alaska Dep’t. of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005). The
opinion is also found in the Answer, ex. 4, doc. 14-1, 43-50, with the quoted
portion appearing at pp. 44-47.

6

1

denial of rehearing to reflect that although Petitioner insisted

2

that the first disciplinary hearing was untimely because it was

3

held on September 25, 2005, the Department of Corrections and

4

Rehabilitation (CDCR) had found that the hearing was timely

5

because it was held on September 24, 2005.

6

Habeas Corpus, No. F054322, 2008 WL 5382414, *1 (Dec. 24, 2008).

7

The hearing officer who presided at the rehearing agreed with the

8

finding, and the trial court agreed with the finding as to the

9

date of the first disciplinary hearing.

10

In re Medina on

Id.

Petitioner filed a petition for writ of habeas corpus in the

11

California Supreme Court on January 21, 2009, alleging that the

12

credit forfeiture violated Petitioner’s right to due process of

13

law under the Fourteenth Amendment.

14

61.)

15

citation of authority on February 18, 2009.

16

14-5, 63.)

(Ans., Ex. 9, doc. 14-5, 16-

The petition was denied without a statement of reasons or
(Id., Ex. 10, doc.

17

III.

18

Title 28 U.S.C. § 2254 provides in pertinent part:

19

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–

20
21

Legal Standards

22
23
24
25
26

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

27
Clearly established federal law refers to the holdings, as
28
7

1

opposed to the dicta, of the decisions of the Supreme Court as of

2

the time of the relevant state-court decision.

3

Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.

4

362, 412 (2000).

5

principles set forth by the Supreme Court at the pertinent time.

6

Lockyer v. Andrade, 538 U.S. 63, 71-72.

Lockyer v.

It is thus the governing legal principle or

7

A state court’s decision contravenes clearly established

8

Supreme Court precedent if it reaches a legal conclusion contrary

9

to that of the Supreme Court or concludes differently on an

10

indistinguishable set of facts.

11

362, 405-06 (2000).

12

Court precedent or have been aware of it, "so long as neither the

13

reasoning nor the result of the state-court decision contradicts

14

[it]."

15

unreasonably applies clearly established federal law if it either

16

1) correctly identifies the governing rule but applies it to a

17

new set of facts in a way that is objectively unreasonable, or 2)

18

extends or fails to extend a clearly established legal principle

19

to a new context in a way that is objectively unreasonable.

20

Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,

21

Williams, 529 U.S. at 408-09.

22

Williams v. Taylor, 529 U.S.

The state court need not have cited Supreme

Early v. Packer, 537 U.S. 3, 8 (2002).

A state court

An application of clearly established federal law is

23

unreasonable only if it is objectively unreasonable; an incorrect

24

or inaccurate application is not necessarily unreasonable.

25

Williams, 529 U.S. at 410.

26

claim lacks merit precludes federal habeas relief as long as

27

fairminded jurists could disagree on the correctness of the state

28

court’s decision.

A state court’s determination that a

Harrington v. Richter, 131 S.Ct. 770, 786-87
8

1

(2011).

2

show that the state court’s ruling on a claim was “so lacking in

3

justification that there was an error well understood and

4

comprehended in existing law beyond any possibility for

5

fairminded disagreement.”

6

The specificity of the rule being applied must be considered; the

7

more general the rule, the more leeway courts have in reaching

8

outcomes in case-by-case determinations.

9

an unreasonable application of clearly established federal law

To obtain federal habeas relief, a state prisoner must

Id.

Id. at 786.

It is not

10

for a state court to decline to apply a specific legal rule that

11

has not been squarely established by the Supreme Court.

12

Id.

The petitioner bears the burden of establishing that the

13

decision of the state court was contrary to, or involved an

14

unreasonable application of, the precedents of the United States

15

Supreme Court.

16

Cir. 2004).

17

Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th

Where there has been one reasoned state judgment rejecting a

18

federal claim, later unexplained orders upholding that judgment

19

or rejecting the same claim are presumed to rest upon the same

20

ground.

21

Thus, where the California Supreme Court denies a habeas petition

22

or petition for review without citation or comment, a district

23

court will “look through” the unexplained decision of that state

24

court to the last reasoned decision of a lower court as the

25

relevant state-court determination.

26

at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n. 5 (9th Cir.

27

2004).

28

///

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

9

Ylst v. Nunnemaker, 501 U.S.

1

If a state court’s decision omits the reason for a decision,

2

the Court must view the state court’s decision to determine if it

3

was objectively unreasonable; the Court should independently

4

review the record and then consider if the state court’s decision

5

was contrary to, or an unreasonable application of, clearly

6

established Supreme Court law.

7

976, 982 (9th Cir. 2000), overruled on other grounds by Lockyer

8

v. Andrade, 538 U.S. 63, 75-76; Himes v. Thompson, 336 F.3d 848,

9

853 (9th Cir. 2003).

See, Delgado v. Lewis, 223 F.3d

10

IV.

11

Here, the California Supreme Court’s denial was unexplained.

Due Process Violation

12

However, it does not appear that a due process claim was

13

presented to the DCA, which ruled only on the application and

14

interpretation of state statutes and regulations.

15

It must be determined whether the unexplained decision of

16

the California Supreme Court was contrary to, or involved an

17

unreasonable application of, clearly established federal law, as

18

determined by the United States Supreme Court.

19

Due process of law in a prison disciplinary setting is

20

satisfied when the hearing is conducted by a neutral fact finder

21

and the inmate is provided with: 1) advance written notice of the

22

claimed violation, 2) a right to call witnesses and present

23

documentary evidence where it would not be unduly hazardous to

24

institutional safety or correctional goals, and 3) a written

25

statement of the finder of fact as to the evidence relied upon

26

and the reasons for disciplinary action taken.

27

McDonnell, 418 U.S. 539, 563-64 (1974).

28

examination, and counsel are not required.
10

Wolff v.

Confrontation, crossWolff, 418 U.S. at

1

568-70.

2

The notice must be 1) written; and 2) given at least twenty-

3

four hours before, and sufficiently in advance of, the hearing to

4

achieve the goals of giving notice, which are to inform the

5

inmate of the charges to permit the inmate to clarify the

6

charges, marshal the facts in his defense, and prepare to offer a

7

defense at the hearing.

8
9

Wolff v. McDonnell, 418 U.S. at 564-65.

Neither party has alerted the Court to any authority from
the Supreme Court that would require any additional, specific

10

time period of notice, and the Court is aware of no such

11

authority.

12

Here, Petitioner received notice more than twenty-four hours

13

before the hearing.

14

facts that tend to show the notice was inadequate to inform

15

Petitioner of the charges or to permit him to marshal the facts

16

and prepare a defense.

17

which Petitioner himself participated; neither the law nor the

18

facts appear to have been complex or uncertain.

19

able to make statements and present evidence.

20

alleges generally that too much time has passed to present an

21

adequate defense.

22

not establish or even suggest that in the circumstances of the

23

present case, Petitioner suffered any prejudice in ascertaining

24

or understanding the charges, marshaling the facts, or preparing

25

to present a defense at the hearing.

26

Petitioner does not allege any specific

The charge involved a single incident in

(Trav. 5.)

Petitioner was
Petitioner only

This generalized assertion does

Generally, a failure to meet a prison guideline regarding a

27

disciplinary hearing would not alone constitute a denial of due

28

process.

See, Bostic v.Carlson, 884 F.2d 1267, 1270 (9th Cir.
11

1

1989).

2

have concluded that to establish a denial of due process of law,

3

prejudice is generally required.

4

U.S. 619, 637 (1993); see also Tien v. Sisto, Civ. No. 2:07-cv-

5

02436-VAP (HC), 2010 WL 1236308, at *4 (E.D.Cal. Mar. 26, 2010)

6

(“While neither the United States Supreme Court or the Ninth

7

Circuit Court of Appeals has spoken on the issue, numerous

8

federal Courts of Appeals, as well as courts in this district,

9

have held that a prisoner must show prejudice to state a habeas

In the absence of controlling authority, several courts

See, Brecht v. Abrahamson, 507

10

claim based on an alleged due process violation in a disciplinary

11

proceeding.”) (citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d

12

Cir. 2009); Howard v. United States Bureau of Prisons, 487 F.3d

13

808, 813 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666

14

(7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992);

15

Poon v. Carey, No. Civ. S-05-0801 JAM EFB P, 2008 WL 5381964, at

16

*5 (E.D.Cal. Dec. 22, 2008); Gonzalez v. Clark, No. 1:07-CV-0220

17

AWI JMD HC, 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)).

18

In summary, there is no clearly established federal law

19

within the meaning of 28 U.S.C. § 2254(d)(1) that would require

20

that prison officials either comply with California’s regulation

21

concerning the time limits of holding a prison disciplinary

22

hearing, or give any other specific time period of notice beyond

23

the twenty-four hour minimum set in Wolff.

24

if the disciplinary hearing were to have been held a day beyond

25

the state law limit of thirty days, the California Supreme

26

Court’s opinion denying Petitioner’s due process claim could not

27

have been contrary to, or an unreasonable application of, clearly

28

established federal law.
12

Because of this, even

1

Further, Petitioner has not established that he suffered any

2

prejudice from the allegedly inadequate notice.

3

Petitioner has not set forth a due process violation warranting

4

relief pursuant to 28 U.S.C. § 2254.

5

Accordingly,

Next, it must be determined whether the unexplained decision

6

of the California Supreme Court resulted in a decision that was

7

based on an unreasonable determination of the facts in light of

8

the evidence presented in the state court proceeding.

9

Title 28 U.S.C. § 2254(e) provides:

10

13

(e)(1) In a proceeding instituted by an application for
a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.

14

To the extent that the state court determined that the

15

disciplinary hearings were held within thirty-day time limit and

16

were permitted by state regulations authorizing rehearings and

17

setting forth rehearing procedures, the conclusion was supported

18

by all the documentary evidence concerning the hearing.

19

Petitioner has not set forth clear and convincing evidence to

20

support his general, conclusory assertion that the disciplinary

21

hearings were untimely.

11
12

22

Petitioner relies on the fact that a correctional officer

23

who was a witness at the first hearing had to be contacted by

24

telephone.

25

even reliably tend to show, that the hearing occurred on a Sunday

26

or after the expiration of the thirty-day time limit set by

27

California regulation.

28

///

Even if true, this does not necessarily establish, or

13

1

The Court, therefore, concludes that in light of the

2

evidence presented in the state court proceeding, Petitioner has

3

not shown that the state court decision was based on an

4

unreasonable determination of the facts within the meaning of §

5

2254(d)(2).

6

In sum, Petitioner has not shown he is entitled to relief

7

pursuant to 28 U.S.C. § 2254.

8

be denied.

9

a ruling on the petition, filed on March 4, 2011, should be

10

The petition should, therefore,

In light of this conclusion, Petitioner’s motion for

dismissed as moot.

11

V.

12

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

13

appealability, an appeal may not be taken to the Court of Appeals

14

from the final order in a habeas proceeding in which the

15

detention complained of arises out of process issued by a state

16

court.

17

U.S. 322, 336 (2003).

18

only if the applicant makes a substantial showing of the denial

19

of a constitutional right.

20

petitioner must show that reasonable jurists could debate whether

21

the petition should have been resolved in a different manner or

22

that the issues presented were adequate to deserve encouragement

23

to proceed further.

24

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

25

certificate should issue if the Petitioner shows that jurists of

26

reason would find it debatable whether the petition states a

27

valid claim of the denial of a constitutional right and that

28

jurists of reason would find it debatable whether the district

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336

14

A

1

court was correct in any procedural ruling.

2

529 U.S. 473, 483-84 (2000).

3

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

4

the claims in the habeas petition, generally assesses their

5

merits, and determines whether the resolution was debatable among

6

jurists of reason or wrong.

7

applicant to show more than an absence of frivolity or the

8

existence of mere good faith; however, it is not necessary for an

9

applicant to show that the appeal will succeed.

10

Id.

It is necessary for an

Miller-El v.

Cockrell, 537 U.S. at 338.

11

A district court must issue or deny a certificate of

12

appealability when it enters a final order adverse to the

13

applicant.

14

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

15

debate whether the petition should have been resolved in a

16

different manner.

17

of the denial of a constitutional right.

18
19

Petitioner has not made a substantial showing

Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.

20

VI.

21

Accordingly, it is RECOMMENDED that:

22

1) The petition for writ of habeas corpus be DENIED; and

23

2) Petitioner’s motion for a ruling be DISMISSED as moot;

24

Recommendation

and

25

3) Judgment be ENTERED in favor of Respondent; and

26

4) The Court DECLINE to issue a certificate of

27
28

appealability.
These findings and recommendations are submitted to the
15

1

United States District Court Judge assigned to the case, pursuant

2

to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

3

the Local Rules of Practice for the United States District Court,

4

Eastern District of California.

5

being served with a copy, any party may file written objections

6

with the Court and serve a copy on all parties.

7

should be captioned “Objections to Magistrate Judge’s Findings

8

and Recommendations.”

9

and filed within fourteen (14) days (plus three (3) days if

Within thirty (30) days after

Such a document

Replies to the objections shall be served

10

served by mail) after service of the objections.

11

then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

12

636 (b)(1)(C).

13

objections within the specified time may waive the right to

14

appeal the District Court’s order.

15

1153 (9th Cir. 1991).

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

16
17

IT IS SO ORDERED.

18

Dated:
ie14hj

August 23, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
16