Dews v. Kern Valley State Prison et al

Filing 22

ORDER Discharging Order To Show Cause (Doc. 8 ), FINDINGS And RECOMMENDATIONS To Dismiss The Petition For Writ Of Habeas Corpus Without Leave To Amend (Doc. 1 ), FINDINGS And RECOMMENDATIONS To Dismiss All Pending Motions As Moot (Docs. 3 , 11 , 14 , 16 , 19 , 20 , 21 ), FINDINGS And RECOMMENDATIONS To Decline To Issue A Certificate Of Appealability And To Direct The Clerk To Send Petitioner A Complaint Form And To Close The Action, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 6/19/2012. F&R's referred to Judge Anthony W. Ishii. (Objections to F&R due by 7/23/2012) (Fahrney, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 CLARENCE LEON DEWS, ) ) Petitioner, ) ) ) v. ) ) KERN VALLEY STATE PRISON, et. ) al., ) Respondents. ) ) ) 16 1:12-cv—00450-AWI-SKO-HC ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 8) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DISMISS ALL PENDING MOTIONS AS MOOT (DOCS. 3, 11, 14, 16, 19, 20, 21) 17 FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO SEND PETITIONER A COMPLAINT FORM AND TO CLOSE THE ACTION 18 19 20 21 OBJECTIONS DEADLINE: THIRTY (30) DAYS 22 23 Petitioner is a state prisoner proceeding pro se and in 24 forma pauperis with a petition for writ of habeas corpus pursuant 25 to 28 U.S.C. § 2254. 26 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 27 302 through 304. 28 petition, which was filed on March 12, 2012, and transferred to The matter has been referred to the Pending before the Court is Petitioner’s 1 1 this Court on March 22, 2012. 2 I. 3 On April 3, 2012, the Court issued to Petitioner an order to Discharge of the Order to Show Cause 4 show cause why the petition should not be dismissed for failure 5 to exhaust state court remedies as to his claims. 6 7 Because Petitioner responded to the order to show cause, the order to show cause issued on April 3, 2012, is DISCHARGED. 8 II. 9 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 10 States District Courts (Habeas Rules) requires the Court to make 11 a preliminary review of each petition for writ of habeas corpus. 12 The Court must summarily dismiss a petition "[i]f it plainly 13 appears from the petition and any attached exhibits that the 14 petitioner is not entitled to relief in the district court....” 15 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 16 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 17 1990). 18 grounds of relief available to the Petitioner; 2) state the facts 19 supporting each ground; and 3) state the relief requested. 20 Notice pleading is not sufficient; the petition must state facts 21 that point to a real possibility of constitutional error. 22 4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 23 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 24 n. 7 (1977)). 25 conclusory, or palpably incredible are subject to summary 26 dismissal. 27 28 Habeas Rule 2(c) requires that a petition 1) specify all Rule Allegations in a petition that are vague, Hendricks v. Vasquez, 908 F.2d at 491. The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the 2 1 respondent's motion to dismiss, or after an answer to the 2 petition has been filed. 3 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 4 (9th Cir. 2001). 5 Advisory Committee Notes to Habeas Rule Petitioner alleges that he is an inmate of the Kern Valley 6 State Prison (KVSP) in Delano, California, located in the Eastern 7 District of California. Petitioner names the warden of the 8 prison as a Respondent. Petitioner challenges his conviction of 9 receiving stolen property in the Superior Court of the State of 10 California, County of Fresno, for which he was sentenced on 11 October 12, 2011. 12 following claims in the petition: 1) the courts must not keep 13 stating that counsel for an indigent defendant must receive 14 transcripts of the trial proceedings because pursuant to the 15 Sixth and Fourteenth Amendments, the accused shall be informed of 16 the nature and cause of the accusation, be confronted with the 17 witnesses against him, and have compulsory process; 2) an 18 indigent defendant must be allowed a right to a transcript 19 pursuant to the Fourth and Fifth Amendments and due process of 20 law; 3) the order issued by the Eastern District Court on 21 February 9, 2012, directed the clerk to close the case, which 22 denied Petitioner the right to redress the court under the First 23 Amendment; 4) under the Sixth and Fourteenth Amendments, the 24 accused has an independent right to a reporter’s transcript of 25 criminal trial proceedings, and rights to be informed of the 26 charges, confront witnesses against him, compulsory process for 27 obtaining witnesses in his favor, and the assistance of counsel 28 in his defense; and 5) a claim set forth verbatim as follows: (Pet., doc. 1, 2.) 3 Petitioner raises the 1 2 3 4 “There are ‘the right to study, to confront, to re-examine or to examine, to have the accusation of the cause of the nature of why there is witnesses against, this duty to and indigent defender is compelled by the 5th, 6th, 14th, to have theses (sic) rights by the Constitution of the people of the United Constitutional Amendment. Your honor, this is a constitutional right; it must be protected, it must not be denied a defendant....” 5 (Id. at 5-6.) 6 III. Background 7 The Court takes judicial notice of an opinion filed on May 8 9, 2012, in People v. Clarence Leon Dews, case number F061339, in 9 the Court of Appeal of the State of California, Fifth Appellate 10 District (CCA).1 This decision is the opinion on direct appeal 11 from the judgment rendered in Fresno County Superior Court case 12 number F09906781, the judgment to which Petitioner’s claims 13 relate. 14 The opinion summarizes the evidence introduced at 15 Petitioner’s trial, which resulted in his conviction of receiving 16 stolen property in violation of Cal. Pen. Code § 496(a) on 17 December 1, 2009, with a prior “strike” conviction within the 18 meaning of Cal. Pen. Code § 667(b)-(i), a prior serious felony 19 conviction within the meaning of Cal. Pen. Code § 667(a)(1), and 20 nine prior prison term enhancements within the meaning of Cal. 21 Pen. Code § 667.5(b). Petitioner was sentenced to fifteen years 22 23 24 25 26 27 28 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official website of the California state courts is www.courts.ca.gov. The Court further notes that the unpublished opinion of the CCA appears at 2012 WL 1623421 (no. F061339, May 9, 2012). 4 1 in prison. (Op. at 1-2.) 2 With respect to the facts relating to Petitioner’s receipt 3 of stolen property, Gerald McCarter discovered that the door of 4 his house on West Belmont had been forced open and the interior 5 ransacked; some of the personal property from the residence was 6 missing, and some had been moved and stacked by the front door as 7 if someone were going to return and remove the items. 8 departed after waiting unsuccessfully for about four hours for 9 the perpetrators. McCarter He returned at about 10:30 p.m. and observed 10 that the front door and screen were open, and a car was parked on 11 the street in front of the house. 12 entered the house and discovered Petitioner’s brother, Archie, 13 going through some electrical equipment in the living room. 14 Archie failed to respond to McCarter’s inquiries, McCarter fired 15 a warning shot. 16 Petitioner and Archie were detained and arrested by law 17 enforcement officers, who were called to the scene. 18 Petitioner incident to arrest yielded distinctive items which 19 McCarter identified as having been removed from the house and 20 having belonged to his late father, a previous resident. 21 testified, admitting that he had told a deputy that he had been 22 looking for things in the house that he could recycle for a few 23 dollars, and that a friend had told him that the house contained 24 a lot of stuff, including some pretty good fishing poles. 25 at 6-11.) 26 Armed with a handgun, McCarter When Petitioner emerged from a back bedroom. A search of Archie (Id. The only issues raised in the appeal concerned the propriety 27 of the trial court’s denial of Petitioner’s second motion to 28 represent himself, which was made in conjunction with a motion to 5 1 discharge Petitioner’s appointed trial counsel a few days before 2 Petitioner’s trial was scheduled to begin. 3 judgment, concluding that the trial court had properly found that 4 when Petitioner had previously represented himself, his tactics, 5 including refiling motions and seeking repeated continuances, 6 were obstreperous, and Petitioner’s renewed motion to represent 7 himself made on the eve of trial was undertaken for the purpose 8 of obstruction or delay. 9 The CCA affirmed the (Id. at 11-31.) The docket and records reflect that in Petitioner’s direct 10 appeal, Petitioner was represented by appointed appellate 11 counsel, who on multiple occasions procured augmentations of the 12 record, filed opening and reply briefs, and waived oral argument. 13 A clerk’s transcript and a reporter’s transcript of 1156 pages 14 were also filed on February 9, 2011. 15 Petitioner’s allegations in his petition for writ of habeas 16 corpus filed in the California Supreme Court and correspondence 17 with his counsel on appeal reveal that Petitioner requested from 18 the trial court his own copy of the transcripts. 19 denied Petitioner’s request because Petitioner's appellate 20 counsel would obtain the transcripts and provide them to 21 Petitioner. 22 The trial court (Doc. 1-1, 5-8, 16.) Appellate counsel declined to forward the transcripts to 23 Petitioner, stating that Petitioner would not serve as counsel’s 24 advisor during the appeal; rather, counsel would determine 25 whether legal advice or research was needed. 26 The CCA denied Petitioner’s petition for writ of habeas corpus, 27 noting in part that Petitioner had appellate counsel, who was 28 sent the record on appeal; further, Petitioner had not shown that 6 (Id. at 9, 28-29.) 1 the appellate process was an inadequate remedy. 2 The Supreme Court summarily denied a petition for writ of habeas 3 corpus regarding the transcript issue. (Id. at 25.) (Doc. 1, 35.) 4 IV. 5 Petitioner alleges that when this Court dismissed Alleged First Amendment Violation 6 Petitioner’s previous habeas corpus petition, it violated his 7 First Amendment right to petition the government peaceably for a 8 redress of grievances. 9 (Doc. 1, 6.) Petitioner cites to Clarence Leon Dews v. Superior Court of 10 State of California, case number 1:11-cv-02050-BAM-HC, filed in 11 this Court and subsequently terminated by the entry of a judgment 12 of dismissal. 13 orders in that case, in which the Court dismissed the petition 14 because Petitioner’s first amended petition (doc. 11), filed on 15 January 6, 2012, concerned only conditions of confinement, 16 namely, interference with Petitioner’s practice of his religion. 17 Thus, by order signed on February 9, 2012, and judgment entered 18 on February 10, 2012, the petition was dismissed for failure to 19 allege facts that would entitle Petitioner to habeas corpus 20 relief. 21 petition the government for redress of grievances was violated by 22 this dismissal of his complaint concerning religious liberty 23 relates not to the legality or duration of his confinement, but 24 rather to the conditions of his confinement. 25 The Court takes judicial notice of the docket and (Doc. 16, 2; 17.) Petitioner's claim that his right to Because the petition was filed after April 24, 1996, the 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies to the petition. 28 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 7 Lindh v. 1 2 1484, 1499 (9th Cir. 1997). A federal court may only grant a state prisoner’s petition 3 for writ of habeas corpus if the petitioner can show that "he is 4 in custody in violation of the Constitution or laws or treaties 5 of the United States." 6 petition is the correct method for a prisoner to challenge the 7 legality or duration of his confinement. 8 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 9 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 28 U.S.C. § 2254(a). A habeas corpus Badea v. Cox, 931 F.2d 10 Adoption. 11 U.S.C. § 1983 is the proper method for a prisoner to challenge 12 the conditions of that confinement. 13 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 14 F.2d at 574; Advisory Committee Notes to Habeas Rule 1, 1976 15 Adoption. 16 In contrast, a civil rights action pursuant to 42 McCarthy v. Bronson, 500 Petitioner’s complaint that his First Amendment rights were 17 violated by the dismissal of his previous habeas petition relates 18 to his exercise of First Amendment rights. 19 the validity of his conviction or sentence, and thus it does not 20 relate to the legality or duration of his confinement. 21 Petitioner is not challenging a conviction or sentence; rather, 22 he is challenging the conditions of his confinement. Therefore, 23 with respect to his First Amendment claim, Petitioner is not 24 entitled to habeas corpus relief, and his claim must be 25 dismissed. 26 It does not bear upon Because the defect in the claim relates not to any 27 inadequacy of factual allegations, but rather to the nature of 28 the claim itself as one concerning conditions of confinement, 8 1 Petitioner could not state a tenable habeas claim for First 2 Amendment relief if leave to amend were granted. 3 therefore, be recommended that the claim be dismissed without 4 leave to amend. 5 It will, Should Petitioner wish to pursue his claim, he must do so by 6 way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 7 The Clerk should be directed to send an appropriate form 8 complaint to Petitioner. 9 V. Petitioner’s Claims concerning Petitioner’s Right to a Transcript of His Trial Proceedings 10 In his remaining claims, Petitioner cites numerous rights of 11 an accused in connection with criminal trial proceedings. (Doc. 12 1, 5-6.) However, Petitioner appears to assert essentially one 13 claim: his rights to due process and equal protection of the law 14 guaranteed by the Fourteenth Amendment were violated by the state 15 courts’ decisions denying his requests for a personal copy of his 16 transcript for use during his direct appeal while he was being 17 represented by counsel who had possession of the record on 18 appeal, including the transcripts, and who filed briefs on the 19 merits in the appellate proceedings. 20 To the extent Petitioner refers to his rights to notice of 21 the charges against him, confrontation of witnesses, access to 22 compulsory process, and the assistance of counsel, he appears to 23 contend that the right to a transcript is part and parcel of, or 24 effectuates, those trial rights. Petitioner does not appear to 25 raise claims directly with respect to these additional trial 26 rights. 27 /// 28 9 1 A district court may entertain a petition for a writ of 2 habeas corpus by a person in custody pursuant to the judgment of 3 a state court only on the ground that the custody is in violation 4 of the Constitution, laws, or treaties of the United States. 28 5 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 6 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 7 16 (2010) (per curiam). 8 Title 28 U.S.C. § 2254 provides in pertinent part: 9 (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– 10 11 12 13 14 15 16 (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. 17 Clearly established federal law refers to the holdings, as 18 opposed to the dicta, of the decisions of the Supreme Court as of 19 the time of the relevant state court decision. Cullen v. 20 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 21 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 22 362, 412 (2000). A state court’s decision contravenes clearly 23 established Supreme Court precedent if it reaches a legal 24 conclusion opposite to, or substantially different from, the 25 Supreme Court's or concludes differently on a materially 26 indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 27 405-06. A state court unreasonably applies clearly established 28 10 1 federal law if it either 1) correctly identifies the governing 2 rule but then applies it to a new set of facts in a way that is 3 objectively unreasonable, or 2) extends or fails to extend a 4 clearly established legal principle to a new context in a way 5 that is objectively unreasonable. 6 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. 7 application of clearly established federal law is unreasonable 8 only if it is objectively unreasonable; an incorrect or 9 inaccurate application is not necessarily unreasonable. 10 11 Hernandez v. Small, 282 F.3d An Williams, 529 U.S. at 410. A state court’s determination that a claim lacks merit 12 precludes federal habeas relief as long as fairminded jurists 13 could disagree on the correctness of the state court’s decision. 14 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). 15 Although the Constitution does not require states to grant 16 appeals as of right to criminal defendants seeking to review 17 alleged trial court errors, if under state law criminal 18 defendants have a right to appeal criminal convictions, the 19 procedures used in deciding those appeals must comply with the 20 requirements of the Due Process and Equal Protection Clauses of 21 the Constitution. 22 Accordingly, a state must provide a transcript of the trial court 23 proceedings to indigent criminal appellants who cannot afford 24 transcripts if that is the only way to insure an adequate and 25 effective appeal. 26 (1956). 27 28 Evitts v. Lucey, 469 U.S. 387, 393 (1985). Griffin v. Illinois, 351 U.S. 12, 18, 13-20 An appellant is entitled to a record that is sufficiently complete to ensure meaningful appellate review that is 11 1 substantially as adequate and effective as that given to 2 appellants with funds. 3 96 (1963); Smith v. Robbins, 528 U.S. 259, 276-77 n. 9 (2000). 4 The appellant must be given a fair opportunity to present his 5 claims in the context of the state’s appellate process and to 6 obtain an adjudication of the merits of the appeal. 7 Robbins, 528 U.S. at 277. 8 it reasonably ensures that an indigent’s appeal will be resolved 9 in a manner that is related to the merits of the appeal. 10 11 Draper v. Washington, 372 U.S. 487, 495- Smith v. A state’s procedure is sufficient if Id. at 276-77. In determining whether a limitation on a record of trial 12 proceedings violates due process, a court considers 1) the value 13 of the transcript to the defendant in connection with the appeal 14 or trial for which it is sought, and 2) the availability of 15 alternative devices that would fulfill the same functions as a 16 transcript. 17 (1971); Madera v. Risley, 885 F.2d 646, 648-49 (9th Cir. 1989). 18 Although an appellant’s right to the assistance of counsel and a 19 brief on the merits must be protected, states must also be able 20 to protect themselves so that frivolous appeals are not 21 subsidized needlessly by public funds. 22 U.S. at 277-78. 23 Britt v. North Carolina, 404 U.S. 226, 227 & n.2 Smith v. Robbins, 528 To establish a due process violation based on the absence of 24 a record, a petitioner must show that he was prejudiced by the 25 record’s absence. 26 McGrath, 314 F.Supp.2d 967, 982 (N.D.Cal. 2004); Quintero v. 27 Tilton, 588 F.Supp.2d 1121, 1128 (C.D.Cal. 2008). 28 information posted on the California courts website shows that Madera v. Risley, 885 F.2d at 649; Cooper v. 12 Here, the 1 the intermediate state appellate court has rendered a decision in 2 Petitioner’s appeal. 3 Petitioner will seek further review on direct appeal from the 4 California Supreme Court. 5 Petitioner to seek to establish prejudice with respect to his 6 right to appeal because the proceedings on direct appeal have not 7 been concluded. 8 9 It is uncertain, however, whether Arguably, it is premature for In his habeas petition filed in the California Supreme Court, Petitioner argued that the prosecution failed to rebut 10 Petitioner’s “presumptive need” for a trial transcript. 11 1, 5-6.) 12 that he suffered prejudice. 13 Petitioner argued that the prosecution failed to provide 14 discovery consisting of a copy of a police report of the charges 15 that the prosecutor’s officer maintained, and/or a sworn 16 allegation by Veronica Eve McCarter, the homeowner's sister, 17 that on a previous occasion in November 2009, she had observed 18 that the front door of the house was smashed, and she had 19 identified specific property, including an old record player and 20 four fishing poles, as property missing from the home at that 21 time. 22 the basis of any charge against Petitioner, whose charges stemmed 23 from the later break-in of December 1, 2009. 24 case no. F061339, 2-7.) 25 suffered any prejudice with respect to the absence of a 26 declaration concerning the earlier events. 27 28 (Doc. 1- As previously noted, it is Petitioner’s burden to show (Doc. 1-1, 12-13.) Further, in the petition, However, the earlier incident was not (Op. of the CCA, It thus does not appear that Petitioner Petitioner alleged in his habeas petition filed in the California Supreme Court that an unidentified portion of the 13 1 transcript would show that the items found in Petitioner’s 2 pockets were valued at $121.00 and thus did not merit a felony 3 charge; the items were photographed and returned and thus were 4 not booked as evidence. 5 not shown that any specific portion of the record is missing or 6 that in the context of the totality of the evidence introduced at 7 trial, the absence of any such portion of the record affected 8 Petitioner’s right to an effective appeal. 9 (Id. at 20-21.) However, Petitioner has Even if the information were shown to be related to the 10 merits of the appeal, it is undisputed that Petitioner received 11 the assistance of appellate counsel, who received the pertinent 12 clerk’s and reporter’s transcripts and attempted to perfect the 13 record on appeal by obtaining additional transcripts. 14 supports an inference that counsel reviewed an adequate record 15 and briefed the arguable issue on the merits. 16 Petitioner has failed to establish any prejudice because he 17 received the assistance of counsel to review the record and argue 18 the case on the merits, and therefore received that which the Due 19 Process and Equal Protection Clauses require. 20 The record Accordingly, In sum, state court decisions denying Petitioner’s request 21 for a personal copy of the trial transcripts were not contrary 22 to, or an unreasonable application of, clearly established 23 federal law. 24 failure to receive a personal copy of the record do not entitle 25 him to relief in a proceeding pursuant to 28 U.S.C. § 2254. 26 Therefore, Petitioner’s allegations concerning his Accordingly, it will be recommended that Petitioner’s claim 27 concerning denial of his requests for the trial transcripts be 28 dismissed without leave to amend. 14 1 VI. 2 Petitioner has filed various motions in this proceeding, Dismissal of Pending Motions as Moot 3 including 1) a notice of motion, styled as a motion, indicating 4 an intention to move in the future for a copy of the transcript 5 (doc. 3); 2) a motion for an order granting Petitioner access to 6 the KVSP law library (doc. 11); 3) a request for intervention in 7 the ongoing appellate proceedings to permit Petitioner to obtain 8 a copy of the appellate transcript (doc. 14); 4) another request 9 for law library access (doc. 16); 5) a motion for discovery to be 10 considered in connection with an evidentiary hearing in this 11 Court regarding Petitioner’s motions for transcripts that were 12 denied in the trial court (doc. 19); 6) a proposed order to the 13 respondent to answer the petition, styled as a “SUMMONS” (doc. 14 20); and 7) a motion for an order compelling discovery concerning 15 why Petitioner was denied a copy of the transcript when he had 16 been determined to be indigent (doc. 21). 17 Because Petitioner’s claims merit dismissal due as they do 18 not entitle him to relief in a proceeding pursuant to 28 U.S.C. § 19 2254, it will be recommended that all pending motions filed by 20 Petitioner in this proceeding be dismissed as moot. 21 VII. 22 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 23 appealability, an appeal may not be taken to the Court of Appeals 24 from the final order in a habeas proceeding in which the 25 detention complained of arises out of process issued by a state 26 court. 27 U.S. 322, 336 (2003). 28 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 15 1 of a constitutional right. 2 petitioner must show that reasonable jurists could debate whether 3 the petition should have been resolved in a different manner or 4 that the issues presented were adequate to deserve encouragement 5 to proceed further. 6 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 7 certificate should issue if the Petitioner shows that jurists of 8 reason would find it debatable whether the petition states a 9 valid claim of the denial of a constitutional right and that § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A 10 jurists of reason would find it debatable whether the district 11 court was correct in any procedural ruling. 12 529 U.S. 473, 483-84 (2000). 13 Slack v. McDaniel, In determining this issue, a court conducts an overview of 14 the claims in the habeas petition, generally assesses their 15 merits, and determines whether the resolution was debatable among 16 jurists of reason or wrong. 17 applicant to show more than an absence of frivolity or the 18 existence of mere good faith; however, it is not necessary for an 19 applicant to show that the appeal will succeed. 20 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 21 A district court must issue or deny a certificate of 22 appealability when it enters a final order adverse to the 23 applicant. 24 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 25 debate whether the petition should have been resolved in a 26 different manner. 27 of the denial of a constitutional right. 28 recommended that the Court decline to issue a certificate of Petitioner has not made a substantial showing 16 Accordingly, it will be 1 appealability. 2 VIII. 3 Accordingly, it is RECOMMENDED that: 4 1) Recommendations The petition be DISMISSED without leave to amend because 5 Petitioner’s claims do not entitle him to relief in a proceeding 6 pursuant to 28 U.S.C. § 2254; and 7 8 9 10 11 2) All pending motions filed by Petitioner be DISMISSED as moot; and 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to send a blank civil rights 12 complaint form to Petitioner with this order, and to close the 13 case because an order of dismissal will terminate the proceeding 14 in its entirety. 15 These findings and recommendations are submitted to the 16 United States District Court Judge assigned to the case, pursuant 17 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 18 the Local Rules of Practice for the United States District Court, 19 Eastern District of California. 20 being served with a copy, any party may file written objections 21 with the Court and serve a copy on all parties. 22 should be captioned “Objections to Magistrate Judge’s Findings 23 and Recommendations.” 24 and filed within fourteen (14) days (plus three (3) days if 25 served by mail) after service of the objections. 26 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 27 § 636 (b)(1)(C). 28 objections within the specified time may waive the right to 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 17 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 5 IT IS SO ORDERED. 6 Dated: ie14hj June 19, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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