Jones v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 7/29/2011 recommending that 8 Amended Petition for Writ of Habeas Corpus be dismissed without leave to amend. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/6/2011. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RAY ANTHONY JONES,
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Petitioner,
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v.
J. D. HARTLEY, Warden,
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Respondent.
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1:11-cv—00666-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE FIRST AMENDED
PETITION WITHOUT LEAVE TO AMEND
FOR FAILURE TO STATE A CLAIM
COGNIZABLE IN A PROCEEDING
PURSUANT TO 28 U.S.C. § 2254
(DOC. 8)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
DEADLINE FOR OBJECTIONS:
THIRTY (30) DAYS AFTER SERVICE
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.
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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 and 303.
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the Court is the first amended petition (FAP), which was filed on
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May 24, 2011.
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I.
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Rule 4 of the Rules Governing § 2254 Cases in the United
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The
Pending before
Screening the Petition
States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”
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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
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1990).
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grounds of relief available to the Petitioner; 2) state the facts
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supporting each ground; and 3) state the relief requested.
Habeas Rule 2(c) requires that a petition 1) specify all
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Notice pleading is not sufficient; rather, the petition must
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state facts that point to a real possibility of constitutional
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error.
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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
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Allison, 431 U.S. 63, 75 n. 7 (1977)).
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that are vague, conclusory, or palpably incredible are subject to
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summary dismissal.
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Cir. 1990).
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Rule 4, Advisory Committee Notes, 1976 Adoption;
Allegations in a petition
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th
Further, the Court may dismiss a petition for writ of habeas
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corpus either on its own motion under Habeas Rule 4, pursuant to
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the respondent's motion to dismiss, or after an answer to the
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petition has been filed.
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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
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(9th Cir. 2001).
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Advisory Committee Notes to Habeas Rule
In the FAP, Petitioner alleges that he is an inmate of the
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Avenal State Prison serving a sentence of seven (7) years to life
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for first degree murder imposed by the Merced County Superior
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Court in 1976.
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California’s Board of Parole Hearings (BPH), made at an
(FAP 1.)
Petitioner challenges the decision of
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unspecified time, to deny Petitioner parole.
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Petitioner alleges that his right to due process of law under the
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Fourteenth Amendment was denied because the BPH relied on the
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unchanging factors of Petitioner’s commitment offense.
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Petitioner alleges that it turned his eligibility for parole into
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a de facto life sentence without the possibility of parole.
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(Id.)
(Id. at 3.)
(Id. )
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II.
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Because the petition was filed after April 24, 1996, the
Failure to State a Cognizable Claim
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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A district court may entertain a petition for a writ of
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habeas corpus by a person in custody pursuant to the judgment of
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a state court only on the ground that the custody is in violation
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of the Constitution, laws, or treaties of the United States.
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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
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16 (2010) (per curiam).
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Lindh
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The Supreme Court has characterized as reasonable the
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decision of the Court of Appeals for the Ninth Circuit that
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California law creates a liberty interest in parole protected by
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the Fourteenth Amendment Due Process Clause, which in turn
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requires fair procedures with respect to the liberty interest.
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Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
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However, the procedures required for a parole determination
are the minimal requirements set forth in Greenholtz v. Inmates
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of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
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Swarthout v. Cooke, 131 S.Ct. 859, 862.
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rejected inmates’ claims that they were denied a liberty interest
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because there was an absence of “some evidence” to support the
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decision to deny parole.
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In Swarthout, the Court
The Court stated:
There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
to offer parole to their prisoners. (Citation omitted.)
When, however, a State creates a liberty interest,
the Due Process Clause requires fair procedures for its
vindication–and federal courts will review the
application of those constitutionally required procedures.
In the context of parole, we have held that the procedures
required are minimal. In Greenholtz, we found
that a prisoner subject to a parole statute similar
to California’s received adequate process when he
was allowed an opportunity to be heard and was provided
a statement of the reasons why parole was denied.
(Citation omitted.)
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Swarthout, 131 S.Ct. 859, 862.
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petitioners had received the process that was due as follows:
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The Court concluded that the
They were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded
access to their records in advance, and were notified
as to the reasons why parole was denied....
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That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
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In Greenholtz, the Court held that a formal hearing is not required
with respect to a decision concerning granting or denying discretionary
parole; it is sufficient to permit the inmate to have an opportunity to be
heard and to be given a statement of reasons for the decision made. Id. at
16. The decision maker is not required to state the evidence relied upon in
coming to the decision. Id. at 15-16. The Court reasoned that because there
is no constitutional or inherent right of a convicted person to be released
conditionally before expiration of a valid sentence, the liberty interest in
discretionary parole is only conditional and thus differs from the liberty
interest of a parolee. Id. at 9. Further, the discretionary decision to
release one on parole does not involve restrospective factual determinations,
as in disciplinary proceedings in prison; instead, it is generally more
discretionary and predictive, and thus procedures designed to elicit specific
facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due
process was satisfied where the inmate received a statement of reasons for the
decision and had an effective opportunity to insure that the records being
considered were his records, and to present any special considerations
demonstrating why he was an appropriate candidate for parole. Id. at 15.
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[the petitioners] received due process.
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Swarthout, 131 S.Ct. at 862.
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noted that California’s “some evidence” rule is not a substantive
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federal requirement, and correct application of California’s
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“some evidence” standard is not required by the Federal Due
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Process Clause.
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The Court in Swarthout expressly
Id. at 862-63.
Here, Petitioner argues that the BPH improperly relied on
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evidence relating to Petitioner’s crime.
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Petitioner asks this Court to engage in the very type of analysis
In so arguing,
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foreclosed by Swarthout.
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state facts that point to a real possibility of constitutional
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error or that otherwise would entitle Petitioner to habeas relief
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because California’s “some evidence” requirement is not a
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substantive federal requirement.
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evidence” to support the denial of parole is not within the scope
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of this Court’s habeas review under 28 U.S.C. § 2254.
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thus concludes that Petitioner’s claim concerning the evidence
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supporting the unsuitability finding should be dismissed.
In this regard, Petitioner does not
Review of the record for “some
The Court
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A petition for habeas corpus should not be dismissed without
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leave to amend unless it appears that no tenable claim for relief
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can be pleaded were such leave granted.
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F.2d 13, 14 (9th Cir. 1971).
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Jarvis v. Nelson, 440
Although Petitioner asserts that his right to due process of
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law was violated by the BPH’s decision, Petitioner does not set
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forth any specific facts concerning his attendance at the parole
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hearing, his opportunity to be heard, or his receipt of a
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statement of reasons for the parole decision.
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has not alleged facts pointing to a real possibility of a
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Thus, Petitioner
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violation of the minimal requirements of due process set forth in
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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442
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U.S. 1 (1979).
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transcript of the parole hearing or other documentation of the
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parole process.
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Further, Petitioner has not submitted any
Petitioner’s initial petition suffered from essentially the
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same defects.
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petition because it was logically possible that Petitioner could
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allege facts showing that in the course of the parole
Petitioner was given leave to file a first amended
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proceedings, he suffered a violation of the minimal due process
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requirements set forth in Greenholtz.
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despite having been given an opportunity to allege facts that
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would support such a claim, Petitioner has failed to do so.
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(Doc. 6, 6.)
However,
The court concludes that it would be futile to grant
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Petitioner further leave to amend the petition.
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therefore, be recommended that the FAP be dismissed without leave
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to amend.
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III.
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Unless a circuit justice or judge issues a certificate of
It will,
Certificate of Appealability
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
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U.S. 322, 336 (2003).
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only if the applicant makes a substantial showing of the denial
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of a constitutional right.
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petitioner must show that reasonable jurists could debate whether
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the petition should have been resolved in a different manner or
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
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Under this standard, a
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that the issues presented were adequate to deserve encouragement
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to proceed further.
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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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certificate should issue if the Petitioner shows that jurists of
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reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right and that
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jurists of reason would find it debatable whether the district
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court was correct in any procedural ruling.
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529 U.S. 473, 483-84 (2000).
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Miller-El v. Cockrell, 537 U.S. at 336
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Slack v. McDaniel,
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
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applicant to show that the appeal will succeed.
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Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
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debate whether the petition should have been resolved in a
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different manner.
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of the denial of a constitutional right.
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recommended that the Court decline to issue a certificate of
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appealability.
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///
Petitioner has not made a substantial showing
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Accordingly, it will be
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IV.
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Accordingly, it is RECOMMENDED that:
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1)
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2)
The Court DECLINE to issue a certificate of
appealability; and
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The first amended petition be DISMISSED without leave to
amend; and
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Recommendations
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The Clerk be DIRECTED to close the action because
dismissal will terminate the proceeding in its entirety.
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These findings and recommendations are submitted to the
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United States District Court Judge assigned to the case, pursuant
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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
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the Local Rules of Practice for the United States District Court,
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Eastern District of California.
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being served with a copy, any party may file written objections
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with the Court and serve a copy on all parties.
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should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.”
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and filed within fourteen (14) days (plus three (3) days if
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served by mail) after service of the objections.
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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
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636 (b)(1)(C).
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objections within the specified time may waive the right to
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appeal the District Court’s order.
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1153 (9th Cir. 1991).
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
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IT IS SO ORDERED.
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Dated:
ie14hj
July 29, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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