Villa v. Fresno County Superior Court

Filing 22

FINDINGS and RECOMMENDATIONS to Deny the 1 Petition for Writ of Habeas Corpus, Enter Judgment for Respondent, and Decline to Issue a Certificate of Appealability; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 5/26/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/29/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ALVARO VILLA,

Case No. 1:12-cv-01585-AWI-SKO-HC

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ORDER SUBSTITUTING RESPONDENT

v.

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Petitioner,

14 JEFFREY A. BEARD, SECRETARY OF
THE CALIFORNIA DEPARTMENT OF
15 CORRECTIONS AND REHABILITATION,
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Respondent.

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FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), ENTER
JUDGMENT FOR RESPONDENT, AND
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the petition, which was filed on
September 27, 2012.

Respondent filed an answer on January 29, 2013.1

Petitioner filed a traverse, styled as “Opposition” to the answer,
on February 22, 2013.

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1

Although Respondent purported to lodge a state court record in support of the
answer (doc. 13), the documents were never lodged with the Court.

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I.

Jurisdiction and Order Substituting Respondent

2

Because the petition was filed after April 24, 1996, the

3 effective date of the Antiterrorism and Effective Death Penalty Act
4 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

5 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
6 1004 (9th Cir. 1999).
7

The challenged judgment was rendered by the Superior Court of

8 the State of California, County of Fresno (FCSC), which is located
9 within the territorial jurisdiction of this Court.
10 §§ 84(b), 2254(a), 2241(a), (d).

28 U.S.C.

Petitioner claims that in the

11 course of the proceedings resulting in his conviction, he suffered
12 violations of his constitutional rights.
13

Accordingly, the Court concludes that it has subject matter

14 jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and
15 2241(c)(3), which authorize a district court to entertain a petition
16 for a writ of habeas corpus by a person in custody pursuant to the
17 judgment of a state court only on the ground that the custody is in
18 violation of the Constitution, laws, or treaties of the United
19 States.

Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v.

20 Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
21

An answer was filed on behalf of Respondent Matthew Cate,

22 Secretary of the California Department of Corrections and
23 Rehabilitation (CDCR), who was named by Petitioner and who had
24 custody of Petitioner at his institution of confinement.

Petitioner

25 thus has named as a respondent a person who had custody of
26 Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of
27 the Rules Governing Section 2254 Cases in the United States District
28 Courts (Habeas Rules).

See Stanley v. California Supreme Court, 21
2

1 F.3d 359, 360 (9th Cir. 1994).
However, in view of the fact that the Secretary of the CDCR is

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3 now Jeffrey A. Beard, it is ORDERED that Jeffrey A. Beard, Secretary
4 of the CDCR, is SUBSTITUTED as Respondent pursuant to Fed. R. Civ.
2
5 P. 25.

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II.

Background

7

Petitioner alleges he is serving a seven-year sentence imposed

8 in November 2011 in the FCSC for what Petitioner describes as “DUI9 second strike.”

(Petn., doc. 1, 1.)

Petitioner appends to the

10 petition documents chronicling his unsuccessful attempt to appeal
11 his conviction after the trial court denied his request for a
12 certificate of probable cause, a document that was required for
13 Petitioner to proceed with an appeal following a guilty plea.
14 Attached to his petition is a copy of a petition for writ of habeas
15 corpus that petitioner filed in the California Supreme Court (CSC).
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16 The petition was denied summarily on June 27, 2012.

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2

Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a
civil action in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending, the officer’s successor is automatically
substituted as a party. It further provides that the Court may order substitution
at any time, but the absence of such an order does not affect the substitution.

21 vThe Court takes judicial notice of the identity of the secretary from the
official website of the California Department of Corrections and Rehabilitation
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 websites. 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).

22 (CDCR), http://www.cdcr.ca.gov.
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The Court takes judicial notice of the CSC’s summary denial of Petitioner’s
state habeas petition. See 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.

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III.

Ineffective Assistance of Counsel in Coercing Plea

2

Petitioner alleges he suffered the ineffective assistance of

3 counsel (IAC) in violation of his rights under the Sixth and
4 Fourteenth Amendments because his appointed trial counsel was
5 ineffective in coercing Petitioner to enter a guilty plea pursuant
6 to a bargain for a seven-year sentence.

Although counsel advised

7 Petitioner to take the offer to avoid a possible life sentence for a
8 third strike, Petitioner alleges counsel only showed him one strike
9 “on my court papers,” but “I told him I only signed one in 2007.”
10 (Id. at 6.)

Petitioner alleges that although he asked counsel to

11 file a Romero motion (i.e., a motion to strike a prior conviction
12 pursuant to state law), counsel failed to do so, and he said that if
13 he did file such a motion, the plea offer was off, and the
14 prosecutor “was filing for three strikes.”

(Id.)

Both counsel and

15 the trial court failed to show Petitioner court papers showing
16 whether he had one or two strikes, even though he asked them to do
17 so.

(Id.)

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Petitioner states in an unverified document that if he had not

19 been advised to take the deal, the maximum sentence he would have
20 faced was the seven years he received; he would have insisted on a
21 Romero motion being made to strike a prior, and if the offer then
22 had still been seven years, he would have gone to trial.

He admits

23 that he was guilty of the substantive offense and that he deserved
24 to serve prison time for the prior conviction.
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A.

(Trav., doc. 14, 4.)

Legal Standards

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

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(d) An application for a writ of habeas corpus on

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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–
(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.
Clearly established federal law refers to the holdings, as
opposed to the dicta, of the decisions of the Supreme Court as of
the time of the relevant state court decision.

Cullen v.

14 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
15 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
16 412 (2000).
17
A state court’s decision contravenes clearly established
18
Supreme Court precedent if it reaches a legal conclusion opposite
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20 to, or substantially different from, the Supreme Court's or
21 concludes differently on a materially indistinguishable set of
22 facts.
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Williams v. Taylor, 529 U.S. at 405-06.

A state court

unreasonably applies clearly established federal law if it either 1)
correctly identifies the governing rule but applies it to a new set
of facts in an objectively unreasonable manner, or 2) extends or

27 fails to extend a clearly established legal principle to a new
28 context in an objectively unreasonable manner.
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Hernandez v. Small,

1 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.
2 An application of clearly established federal law is unreasonable
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only if it is objectively unreasonable; an incorrect or inaccurate
application is not necessarily unreasonable.

Williams, 529 U.S. at

410.
A state court’s determination that a claim lacks merit

8 precludes federal habeas relief as long as fairminded jurists could
9 disagree on the correctness of the state court’s decision.
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Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).

Even

a strong case for relief does not render the state court’s
conclusions unreasonable.

Id.

To obtain federal habeas relief, a

14 state prisoner must show that the state court’s ruling on a claim
15 was “so lacking in justification that there was an error well
16 understood and comprehended in existing law beyond any possibility
17
for fairminded disagreement.” Id. at 786-87. The § 2254(d)
18
standards are “highly deferential standard[s] for evaluating state19
20 court rulings” which require that state court decisions be given the
21 benefit of the doubt, and the Petitioner bear the burden of proof.
22 Cullen v. Pinholster, 131 S.Ct. at 1398.
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Habeas relief is also not

appropriate unless each ground supporting the state court decision
is examined and found to be unreasonable under the AEDPA.

Wetzel v.

Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court’s

28 legal conclusion was contrary to or an unreasonable application of
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1 federal law, “review... is limited to the record that was before the
2 state court that adjudicated the claim on the merits.”
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Pinholster, 131 S.Ct. at 1398.

Cullen v.

Evidence introduced in federal court

has no bearing on review pursuant to § 2254(d)(1).

Id. at 1400.

Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding

7 brought by a person in custody pursuant to a judgment of a state
8 court, a determination of a factual issue made by a state court
9 shall be presumed to be correct.
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The petitioner has the burden of

producing clear and convincing evidence to rebut the presumption of
correctness.

A state court decision on the merits based on a

factual determination will not be overturned on factual grounds

14 unless it was objectively unreasonable in light of the evidence
15 presented in the state proceedings.

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

16 322, 340 (2003).
17
The law governing claims concerning ineffective assistance of
18
counsel is clearly established for the purposes of the AEDPA
19
deference standard set forth in 28 U.S.C. ' 2254(d). Premo v.
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Moore, B U.S. B, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151
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F.3d 1226, 1229 n.2 (9th Cir. 1998). To demonstrate ineffective
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assistance of counsel in violation of the Sixth and Fourteenth
23
Amendments, a convicted defendant must show that 1) counsel’s
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representation fell below an objective standard of reasonableness
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under prevailing professional norms in light of all the
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circumstances of the particular case; and 2) unless prejudice is
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presumed, it is reasonably probable that, but for counsel’s errors,
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the result of the proceeding would have been different. Strickland
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1 v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d
2 344, 346 (9th Cir. 1994).

A petitioner must identify the acts or

3 omissions of counsel that are alleged to have been deficient.
4 Strickland, 466 U.S. at 690.
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In determining whether counsel=s conduct was deficient, a court

6 should consider the overall performance of counsel from the
7 perspective of counsel at the time of the representation.
8 Strickland, 466 U.S. at 689.

There is a strong presumption that

9 counsel=s conduct was adequate and within the exercise of reasonable
10 professional judgment and the wide range of reasonable professional
11 assistance.
12

Strickland, 466 U.S. at 688-90.

Establishing that a state court's application of the Strickland

13 standard was unreasonable under § 2254(d) is all the more difficult.
14 The standards created by Strickland and § 2254(d) are both highly
15 deferential.

Id., at 689 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320,

16 333, n.7 (1997).
17 deferential.

When the two apply together, review is doubly

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The

18 Strickland standard is a general one, so the range of reasonable
19 applications is substantial.

Id.

When § 2254(d) applies, the

20 question is not whether counsel's actions were reasonable; the
21 question is whether there is any reasonable argument that counsel
22 satisfied Strickland's deferential standard.

Premo v. Moore, 131

23 S.Ct. at 739-40.
24

Here, with respect to a challenge to a guilty plea, if a

25 prisoner pleads guilty on the advice of counsel, the prisoner must
26 demonstrate that the advice was not within the range of competence
27 demanded of attorneys in criminal cases.
28 U.S. 258, 266-67 (1973).

Tollett v. Henderson, 411

A guilty plea represents a break in the
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1 chain of events which has preceded it in the criminal process.

When

2 a criminal defendant has admitted in open court that he is in fact
3 guilty of the offense with which he is charged, he may not raise
4 independent claims relating to the deprivation of constitutional
5 rights that occurred before the entry of the guilty plea; he may
6 only attack the voluntary and intelligent character of the guilty
7 plea by showing that the advice he received from counsel was not
8 within the range of reasonable competence.

Tollett v. Henderson,

9 411 U.S. at 267.
10

To demonstrate ineffective assistance of counsel in the context

11 of a challenge to a guilty plea, a habeas petitioner must show both
12 that counsel's advice fell below an objective standard of
13 reasonableness as well as a “reasonable probability” that, but for
14 counsel's errors, the petitioner would not have pleaded guilty and
15 would have insisted on going to trial.

Hill v. Lockhart, 474 U.S.

16 52, 58–59 (1985) (the two-part test of Strickland v. Washington
17 applies to challenges to guilty pleas based on the ineffective
18 assistance of counsel); Missouri v. Frye, – U.S. – , 132 S.Ct. 1399,
19 1405 (2012) (reaffirming that Hill is properly applied to claims of
20 ineffective assistance of counsel in the context of acceptance of a
21 plea bargain); Padilla v. Kentucky, – U.S. – , 130 S.Ct. 1473, 1485
22 (2010) (to obtain relief on this type of claim, a petitioner must
23 convince the court that a decision to reject the plea bargain would
24 have been rational under the circumstances).
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B.

Analysis

Petitioner does not allege he was ignorant of either his

27 constitutional rights or the substantive law relating to his
28 commitment offense; he readily admits that he is guilty of the
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1 substantive offense and that he deserves prison time for his prior
2 conviction.

(Doc. 14, 5.)

Petitioner’s sole challenge is to the

3 advice received regarding the sentence imposed pursuant to the
4 bargain.
5

Petitioner alleges in a conclusional fashion that he had only

6 one prior strike, he only signed one, and counsel did not show him
7 any paper work that proved that he had sustained two prior strikes.
8 (Petn., doc. 1, 6; doc. 14, 4 [unsworn statement in the traverse].)
9 He alleges that both the prosecutor and defense counsel stated that
10 he had two prior convictions (doc. 1, petn. filed in CSC at 3);
11 however, he does not set forth the nature of any prior conviction or
12 any other factual detail regarding his criminal history.

Likewise,

13 if he is contending that there was a basis for striking a prior
14 conviction to reduce his overall sentence, he has failed to specify
15 any facts warranting a motion to strike a prior conviction or even
16 suggesting that such a motion would have been successful.
17

Petitioner alleges that counsel only spoke to him two or three

18 minutes before each court appearance and did nothing to obtain a
19 lower sentence for Petitioner.

(Doc. 1, petn. filed in CSC at 4.)

20 Defense counsel has a duty to make a reasonable investigation or to
21 make a reasonable decision that makes a particular investigation
22 unnecessary.

Strickland, 466 U.S. at 691.

A failure to investigate

23 must be reasonable in light of all the circumstances.

Id.

What

24 counsel knows may also be a critical component in determining the
25 reasonableness of a failure to investigate.

In this regard, the

26 Court in Strickland stated the following:
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The reasonableness of counsel's actions may be determined
or substantially influenced by the defendant's own
statements or actions. Counsel's actions are usually
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based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the
defendant. In particular, what investigation decisions are
reasonable depends critically on such information. For
example, when the facts that support a certain potential
line of defense are generally known to counsel because of
what the defendant has said, the need for further
investigation may be considerably diminished or eliminated
altogether. And when a defendant has given counsel reason
to believe that pursuing certain investigations would be
fruitless or even harmful, counsel's failure to pursue
those investigations may not later be challenged as
unreasonable. In short, inquiry into counsel's
conversations with the defendant may be critical to a
proper assessment of counsel's investigation decisions,
just as it may be critical to a proper assessment of
counsel's other litigation decisions.
Strickland v. Washington, 466 U.S. at 691.
Here, Petitioner has not detailed the charges filed against
him, the conduct that was the basis of the charges, his criminal
history, facts indicating the legal sufficiency of any of his prior
convictions or other adjudications to warrant the sentence actually
imposed or a different sentence, or the precise terms of the plea
bargain which Petitioner apparently accepted.

These are all matters

that are within Petitioner’s personal knowledge.
The record indicates at best that there was a disagreement or
misunderstanding between Petitioner and the other participants in
the criminal proceedings as to the nature or legal effect of prior
adjudications, but not that counsel gave incorrect advice.

Although

Petitioner asserts in an unsworn document that he would have gone to
trial had he received correct advice, he has not set forth any basis
for concluding that the advice to take the plea was, under all the
circumstances, objectively unreasonable and without the range of
reasonable competence.

Petitioner has not shown that he could have
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1 avoided conviction or a seven-year sentence.

Indeed, he has

2 admitted his guilt and that he deserves to serve time for his prior
3 conviction.

The state court could have reasonably concluded that

4 Petitioner had not shown substandard advice or any basis for an
5 inference of prejudice.
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Accordingly, it will be recommended that Petitioner’s IAC claim

7 be denied.
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IV.

Excessive Sentence

9

Petitioner alleges that his sentence of seven years, consisting

10 of the upper term of three years doubled to six because of a “prior
11 strike” with an additional year for a “prison prior,” was excessive
12 because he was coerced to agree to it when it was not certain that
13 Petitioner even had two prior “strike” convictions, and because the
14 restitution ordered was excessive.

(Pet., doc. 1, 8.)

He alleges

15 that at his first court appearance, he was offered thirty-two months
16 and a second strike, and three months later he was looking at seven
17 years and a third strike when they were not even sure he had two
18 strikes.
19

(Id.)

With respect to restitution, Petitioner alleges only that he

20 was ordered to pay $3,000 because he was on parole, whereas others
21 were charged only $200.00.
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(Id.)

With respect to the component of the sentence relating to

23 Petitioner’s time in custody, he does not appear to argue that his
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sentence exceeded the time to which he was properly exposed under
state law.
proceeding.

Such a claim would not warrant relief in this
A claim alleging misapplication of state sentencing law

28 involves a question of state law which is not cognizable in a
12

1 proceeding pursuant to 28 U.S.C. § 2254.

See Lewis v. Jeffers, 497

2 U.S. 764, 780 (1990) (rejecting a claim that a state court
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misapplied state statutes concerning aggravating circumstances on
the ground that federal habeas corpus relief does not lie for errors
of state law); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002)

7 (concluding that claims alleging only that the trial court abused
8 its discretion in selecting consecutive sentences and erred in
9 failing to state reasons for choosing consecutive terms are not
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cognizable); Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir.
1989) (concluding that a claim concerning whether a prior conviction
qualified as a sentence enhancement under state law was not

14 cognizable).

Petitioner has not shown that the challenged aspects

15 of his sentence violated federal law.
16
17

To the extent that Petitioner may be challenging his seven-year
sentence as disproportionate and excessive, Petitioner has not

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alleged facts that would entitle him to relief.

A criminal sentence

20 that is “grossly disproportionate” to the crime for which a
21 defendant is convicted may violate the Eighth Amendment.

Lockyer v.

22 Andrade, 538 U.S. 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957,
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1001 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S.
263, 271 (1980).

Outside of the capital punishment context, the

Eighth Amendment prohibits only sentences that are extreme and

27 grossly disproportionate to the crime.

United States v. Bland, 961

28 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501
13

1 U.S. 957, 1001, (1991) (Kennedy, J., concurring)).

Such instances

2 are “exceedingly rare” and occur in only “extreme” cases.
3
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5
6

v. Andrade, 538 U.S. at 72 73; Rummel, 445 U.S. at 272.

Lockyer

So long as

a sentence does not exceed statutory maximums, it will not be
considered cruel and unusual punishment under the Eighth Amendment.

7 See United States v. Mejia Mesa, 153 F.3d 925, 930 (9th Cir. 1998);
8 United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990).
9
10
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The Eighth Amendment does not disturb the authority of a state
to protect the public by adopting a sentencing scheme that imposes
longer sentences on recidivists who have suffered a serious prior
felony conviction. Ewing v. California, 538 U.S. 11, 25 (2003)

14 (upholding a sentence of twenty-five years to life for a recidivist
15 convicted of grand theft); Lockyer v. Andrade, 538 U.S. 63, 66-67,
16 73-76 (2003) (upholding two consecutive terms of twenty-five years
17
to life and denying habeas relief to an offender convicted of theft
18
of videotapes worth approximately $150 with prior offenses that
19
20 included first-degree burglary, transportation of marijuana, and
21 escape from prison); Rummel, 445 U.S. at 284 85 (upholding a
22 sentence of life with the possibility of parole for a recidivist
23
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convicted of fraudulently using a credit card for $80, passing a
forged check for $28.36, and obtaining $120.75 under false
pretenses); see Taylor v. Lewis, 460 F.3d 1093, 1101–02 (9th Cir.

27 2006) (upholding a sentence of twenty-five years to life for
28 possession of .036 grams of cocaine base where the petitioner had
14

1 served multiple prior prison terms with prior convictions of
2 offenses that involved violence and crimes against the person).
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6

Likewise, the Court has affirmed severe sentences for controlled
substance violations.

See Harmelin v. Michigan, 501 U.S. at 962-64

(1990) (upholding a sentence of life without the possibility of

7 parole for a defendant convicted of possessing more than 650 grams
8 of cocaine, although it was his first felony offense).
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Here, Petitioner has not set forth any facts regarding the
substance and circumstances of his commitment offense, the social
harm resulting from his criminal conduct, and Petitioner’s criminal
history.

In view of not only the limited legal basis for a

14 challenge to the sentence, but also the absence of any pertinent
15 factual detail, there is no basis for the Court to conclude that
16 Petitioner’s seven-year sentence was disproportionate or excessive.
17
To the extent Petitioner raises a claim concerning his
18
restitution, he appears to be arguing about the application or
19
20 interpretation of state law made by the state court. Federal habeas
21 relief is not available to retry a state issue that does not rise to
22 the level of a federal constitutional violation.
23
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Wilson v.

Corcoran, 131 S.Ct. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).

Alleged errors in the application of state law are not

cognizable in federal habeas corpus.

27 616, 623 (9th Cir. 2002).

Souch v. Schaivo, 289 F.3d

The Court accepts a state court's

28 interpretation of state law.

Langford v. Day, 110 F.3d 1180, 1389
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1 (9th Cir. 1996).
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5
6

Petitioner has also failed to state any factual basis for a
finding that the amount of restitution he was ordered to pay
violated any constitutional right because unspecified others had
been ordered to pay less.

A petitioner may establish an equal

7 protection claim by showing that he was intentionally discriminated
8 against based on his membership in a protected class.
9 City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).
10
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13

See, Lee v.
A

petitioner may also establish an equal protection claim by showing
that similarly situated individuals were intentionally treated
differently without a rational basis for the difference in

14 treatment.

See, Village of Willowbrook v. Olech, 528 U.S. 562, 564

15 (2000) (per curiam); Engquist v. Oregon Department of Agriculture,
16 553 U.S. 591, 601-02 (2008).
17
Here, Petitioner has not alleged facts showing that he was the
18
object of any intentional discrimination or that he was similarly
19
20 situated with the others who allegedly were ordered to pay less
21 restitution.

Petitioner has not shown any basis for relief with

22 respect to the amount of restitution ordered.
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Accordingly, it will

be recommended that the Court deny Petitioner’s claim that his
sentence was excessive.
V.

Certificate of Appealability

Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the Court of Appeals
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1 from the final order in a habeas proceeding in which the detention
2 complained of arises out of process issued by a state court.

28

3 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
4 (2003).

A district court must issue or deny a certificate of

5 appealability when it enters a final order adverse to the applicant.
6 Habeas Rule 11(a).
7

A certificate of appealability may issue only if the applicant

8 makes a substantial showing of the denial of a constitutional right.
9 ' 2253(c)(2).

Under this standard, a petitioner must show that

10 reasonable jurists could debate whether the petition should have
11 been resolved in a different manner or that the issues presented
12 were adequate to deserve encouragement to proceed further.

Miller-

13 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
14 473, 484 (2000)).

A certificate should issue if the Petitioner

15 shows that jurists of reason would find it debatable whether: (1)
16 the petition states a valid claim of the denial of a constitutional
17 right, and (2) the district court was correct in any procedural
18 ruling.
19

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

In determining this issue, a court conducts an overview of the

20 claims in the habeas petition, generally assesses their merits, and
21 determines whether the resolution was debatable among jurists of
22 reason or wrong.

Id.

An applicant must show more than an absence

23 of frivolity or the existence of mere good faith; however, the
24 applicant need not show that the appeal will succeed.

Miller-El v.

25 Cockrell, 537 U.S. at 338.
26

Here, it does not appear that reasonable jurists could debate

27 whether the petition should have been resolved in a different
28 manner.

Petitioner has not made a substantial showing of the denial
17

1 of a constitutional right.

Accordingly, it will be recommended that

2 the Court decline to issue a certificate of appealability.
3

VI.

Recommendations

4

Based on the foregoing, it is RECOMMENDED that:

5

1)

The petition for writ of habeas corpus be DENIED; and

6

2)

Judgment be ENTERED for Respondent; and

7

3)

The Court DECLINE to issue a certificate of appealability.

8

These findings and recommendations are submitted to the United

9 States District Court Judge assigned to the case, pursuant to the
10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
11 Rules of Practice for the United States District Court, Eastern
12 District of California.

Within thirty (30) days after being served

13 with a copy, any party may file written objections with the Court
14 and serve a copy on all parties.

Such a document should be

15 captioned AObjections to Magistrate Judge=s Findings and
16 Recommendations.@

Replies to the objections shall be served and

17 filed within fourteen (14) days (plus three (3) days if served by
18 mail) after service of the objections.

The Court will then review

19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
20 The parties are advised that failure to file objections within the
21 specified time may result in the waiver of rights on appeal.
22 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
23 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
24
25 IT IS SO ORDERED.
26
27

Dated:

May 26, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

28
18