Sambrano v. Reed

Filing 11

FINDINGS and RECOMMENDATIONS to Grant Respondent's 9 Motion to Dismiss the Petition; FINDINGS AND RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case signed by Magistrate Judge Sheila K. Oberto on 02/19/2015. Referred to Judge O'Neill; Objections to F&R due by 3/25/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LARRY P. SAMBRANO,

Case No. 1:14-cv-01223-LJO-SKO-HC

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FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION (DOC. 9)

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Petitioner,
v.

FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT LEAVE
TO AMEND (DOC. 1), DECLINE TO ISSUE
A CERTIFICATE OF APPEALABILITY, AND
DIRECT THE CLERK TO CLOSE THE CASE

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S. REED,
Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se with a

20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
21 The matter has been referred to the Magistrate Judge pursuant to 28
22 U.S.C. § 636(b)(1) and Local Rules 302 through 304.

Pending before

23 the Court is the Respondent’s motion to dismiss the petition, which
24 was filed on October 10, 2014.
25 October 31, 2014.

Petitioner filed opposition on

Although the time for filing a reply has passed,

26 no reply has been filed.
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I.

Background

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Petitioner alleges that he is an inmate of the California
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1 Correctional Institution at Tehachapi (CCIT) serving a sentence for
2 attempted murder.

Petitioner challenges a disciplinary finding made

3 on or about March 25, 2011, at Kern Valley State Prison (KVSP), that
4 Petitioner committed attempted murder with serious injury and use of
5 a deadly weapon, as well as the sanction of loss of 360 days of
6 conduct credit imposed for the disciplinary violation.
7 1, 1-2.)

(Pet., doc.

Petitioner raises the following claims in the petition: 1)

8 he was denied his right to an impartial decision maker because
9 Captain S. Henderson submitted a confidential report on the
10 disciplinary charge on February 25, 2011, acted as the decision
11 maker on the charge on March 25, 2011, and issued a falsified
12 report; 2) Henderson failed to process any documentation on the
13 charge and relied on personal, handwritten notes at the hearing,
14 resulting in Petitioner’s being unable to present unspecified
15 defenses; 3) there was no evidence to support the charge; 4)
16 Petitioner suffered an illegal deprivation of time credits because
17 time limitations (apparently based on state law or policy) on re18 issuing reports were violated, the untimely report was the only
19 evidence of guilt, and the only corroborative evidence was reported
20 after the guilty finding, denying Petitioner an opportunity to
21 defend against the charge and denied him an opportunity to prepare
22 for the hearing.

Petitioner seeks reversal of the finding and

23 reinstatement of his time credits and his work group assignment.
24 (Id. at 4-10.)
25

With respect to the facts of the disciplinary offense, officers

26 reported that inmate Soto was observed to be bleeding profusely from
27 two lacerations across the left side of his face and one across the
28 back of his neck; he was also bleeding actively from a puncture
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1 wound to the lower abdomen.

(Doc. 10, 34.)

Soto was so severely

2 injured that he had to be transported by ambulance to an external
3 treatment facility.

(Id. at 61.)

A confidential disclosure form

4 reflected that two sources independently informed prison authorities
5 that Petitioner had assaulted inmate Soto with a weapon.
6 70.)

A motive for the attack was provided.

(Id.)

(Doc. 10,

A confidential

7 informant saw Petitioner slash the victim across the face in the
8 dayroom; the informant had previously given truthful information,
9 and to release more information might endanger institutional safety.
10 (Id. at 34.)

A confidential information report reflected that a

11 search of the informant’s central file had been conducted to verify
12 the reporting officer’s statement that the informant had previously
13 provided true information.

(Id. at 49.)

The confidential

14 information was disclosed to Petitioner to the extent possible, but
15 further disclosure could endanger safety.

(Id. at 70.)

The hearing

16 officer also relied on a schematic report showing that at the time
17 of the attack, Petitioner was not where he had claimed to be; he was
18 where confidential information had indicated.
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(Id. at 48.)

The hearing officer accepted as true Petitioner’s

20 representations that inmates Steve, Hernandez, and Gomez would
21 testify that at the time of the attack, Petitioner was with them
22 playing cards in the dayroom.

(Id. at 47.)

The officer also

23 accepted as true his representation that inmate Soto would testify
24 that Petitioner did not attack him.

(Id.)

The hearing officer

25 concluded that each confidential source was corroborated not only by
26 the other source but also by the physical evidence, which further
27 reflected Petitioner’s intent to murder Soto.
28 ///
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(Id. at 48-50.)

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II.

Failure to Exhaust State Court Remedies

2

The California Supreme Court (CSC) denied Petitioner’s habeas

3 corpus petition.

In its order of denial filed on July 9, 2014, the

4 CSC stated the following:
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The petition for writ of habeas corpus is denied.
(See People v. Duvall (1995) 9 Cal. 4th 464, 474; In re
Dexter (1979) 25 Cal.3d 921, 925.)
(Motn., ex. 2, doc. 9 at 24.)
Respondent seeks dismissal because the citation of Duvall and
Dexter indicate that Petitioner failed to exhaust his state court

11 remedies as to all his claims, and thus dismissal of the petition is
12 warranted.

Respondent argues that dismissal is also appropriate

13 because Petitioner’s procedural default of failing to exhaust
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administrative remedies forecloses review of Petitioner’s claims in
this proceeding.
A.

Proceeding by a Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases in the United

19 States District Courts (Habeas Rules) allows a district court to
20 dismiss a petition if it “plainly appears from the face of the
21 petition and any exhibits annexed to it that the petitioner is not
22 entitled to relief in the district court....”
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The Ninth Circuit has allowed respondents to file motions to

24 dismiss pursuant to Rule 4 instead of answers if the motion to
25 dismiss attacks the pleadings by claiming that the petitioner has
26 failed to exhaust state remedies or has violated the state’s
27 procedural rules.

O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

28 1990) (using Rule 4 to evaluate a motion to dismiss a petition for
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1 failure to exhaust state remedies); White v. Lewis, 874 F.2d 599,
2 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to dismiss
3 for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189,
4 1194 & n.12 (E.D.Cal. 1982) (same).

Thus, a respondent may file a

5 motion to dismiss after the Court orders the respondent to respond,
6 and the Court should use Rule 4 standards to review a motion to
7 dismiss filed before a formal answer.

Hillery v. Pulley, 533

8 F.Supp. at 1194 & n.12.
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Here, Respondent’s motion to dismiss addresses Petitioner’s

10 failure to exhaust state court remedies and the effect of
11 Petitioner’s procedural default in state court.

The relevant

12 material facts are found in copies of the official records of state
13 judicial proceedings which have been provided by the parties and as
14 to which there is no factual dispute.

The Court will review

15 Respondent’s motion to dismiss pursuant to its authority under
16 Habeas Rule 4.
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B.

Legal Standards

A petitioner in state custody who wishes to challenge

19 collaterally a conviction by a petition for writ of habeas corpus
20 must exhaust state judicial remedies.

28 U.S.C. ' 2254(b)(1).

The

21 exhaustion doctrine is based on comity to the state court and gives
22 the state court the initial opportunity to correct the state's
23 alleged constitutional deprivations.

Coleman v. Thompson, 501 U.S.

24 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
25 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by

27 providing the highest state court with the necessary jurisdiction a
28 full and fair opportunity to consider each claim before presenting
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1 it to the federal court, and demonstrating that no state remedy
2 remains available.

Picard v. Connor, 404 U.S. 270, 275-76 (1971);

3 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

A federal court

4 will find that the highest state court was given a full and fair
5 opportunity to hear a claim if the petitioner has presented the
6 highest state court with the claim's factual and legal basis.
7 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v.
8 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as
9 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
10

The petitioner must have specifically told the state court he

11 was raising a federal constitutional claim.

Duncan, 513 U.S. at

12 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000),
13 amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d
14 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241
15 (9th Cir. 1998).

In Duncan, the United States Supreme Court

16 reiterated the rule as follows:
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In Picard v. Connor, 404 U.S. 270, 275...(1971),
we said that exhaustion of state remedies requires that
petitioners "fairly presen[t]" federal claims to the
state courts in order to give the State the
"'opportunity to pass upon and correct= alleged
violations of the prisoners' federal rights" (some
internal quotation marks omitted). If state courts are
to be given the opportunity to correct alleged violations
of prisoners' federal rights, they must surely be
alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a
habeas petitioner wishes to claim that an evidentiary
ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment,
he must say so, not only in federal court, but in state
court.

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1 Duncan, 513 U.S. at 365-366.

The Ninth Circuit examined the rule

2 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
3 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
4 2001), stating:
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Our rule is that a state prisoner has not "fairly
presented" (and thus exhausted) his federal claims
in state court unless he specifically indicated to
that court that those claims were based on federal law.
See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir.
2000). Since the Supreme Court's decision in Duncan,
this court has held that the petitioner must make the
federal basis of the claim explicit either by citing
federal law or the decisions of federal courts, even
if the federal basis is "self-evident," Gatlin v. Madding,
189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v.
Harless, 459 U.S. 4, 7... (1982), or the underlying
claim would be decided under state law on the same
considerations that would control resolution of the claim
on federal grounds, see, e.g., Hiivala v. Wood, 195
F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon,
88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d
at 865.
...
In Johnson, we explained that the petitioner must alert
the state court to the fact that the relevant claim is a
federal one without regard to how similar the state and
federal standards for reviewing the claim may be or how
obvious the violation of federal law is.
Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended
by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
Where none of a petitioner=s claims has been presented to the highest
state court as required by the exhaustion doctrine, the Court must
dismiss the petition.

Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th

Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).

The

authority of a court to hold a mixed petition in abeyance pending
exhaustion of the unexhausted claims has not been extended to
petitions that contain no exhausted claims.
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Raspberry, 448 F.3d at

1 1154.
C.

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Citation of Dexter

In In re Dexter, 25 Cal.3d 921 (1979), the CSC declined to

4 review a habeas petition because the petitioner failed to exhaust
5 his available administrative remedies.

Here, the CSC’s citation of

6 Dexter in its order denying Petitioner’s habeas petition means the
7 CSC did not reach the merits of Petitioner’s claims because he had
8 failed to exhaust administrative remedies.

See Harris v. Superior

9 Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc) (noting that if
10 the CSC in a denial order cites an authority indicating that the
11 petition was procedurally deficient, available state remedies have
12 not been exhausted due to the failure to give the CSC a fair
13 opportunity to correct the underlying constitutional violation).
14 District courts in California have consistently held that denial of
15 a habeas petition with a citation to Dexter means that the
16 petitioner has not exhausted state court remedies.

See Herrera v.

17 Gipson, no. 2:12-cv-2982 TLN DAD P, 2014 WL 5463978, at *1-*3
18 (E.D.Cal. Oct. 27, 2014) (unpublished) (collecting cases).
19

Here, Petitioner’s administrative appeal was initially

20 rejected because of documentation attached to it.

Petitioner then

21 resubmitted the appeal to the Chief Appeals Branch, which resulted
22 in denial of the appeal because lower adjudicative levels had been
23 bypassed and the instruction to send the appeal to KVSP had not been
24 followed.

(Doc. 10 at 3-4, 12-13, 16-18, 21, 26, 32.)

25 resubmitted the appeal, which was dismissed as untimely.

Petitioner
(Id. at

26 4.)
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In a petition filed in the CSC, Petitioner alleged that after

28 communication with Internal Affairs, on December 21, 2011, in a
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1 telephonic hearing held at KVSP regarding the appeal, Petitioner was
2 offered a rehearing of the rules violation report, but he declined.
3 When he tried to re-activate the appeal, he learned that the appeal
4 had been cancelled.
5

(Motn., doc. 9 at 16.)

Although Petitioner contends his administrative appeal was not

6 untimely, the question of whether the California Supreme Court
7 properly determined that Petitioner had failed to exhaust the
8 administrative remedies provided for by state statutes and
9 regulations is a state law matter for which federal habeas corpus
10 relief does not lie.

Federal habeas relief is available to state

11 prisoners only to correct violations of the United States
12 Constitution, federal laws, or treaties of the United States (28
13 U.S.C. ' 2254(a)); it is not available to retry a state issue that
14 does not rise to the level of a federal constitutional violation.
15 Wilson v. Corcoran, 562 U.S. C, 131 S.Ct. 13, 16 (2010); Estelle v.
16 McGuire, 502 U.S. 62, 67-68 (1991).
17 court's interpretation of state law.
18 1180, 1389 (9th Cir. 1996).

The Court accepts a state
Langford v. Day, 110 F.3d

In a habeas corpus proceeding, this

19 Court is bound by the California Supreme Court=s interpretation of
20 California law unless the interpretation is deemed untenable or a
21 veiled attempt to avoid review of federal questions.

Murtishaw v.

22 Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
23

Here, there is no indication that the state court’s

24 interpretation of state law was associated with an attempt to avoid
25 review of federal questions.

This Court is, therefore, bound by the

26 state court’s interpretation and application of state law.
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In summary, in light of the California Supreme Court’s citation

28 of Dexter in its denial order, it is concluded that Petitioner did
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1 not fairly present his claims to the state’s highest court and thus
2 has not satisfied the exhaustion requirement. Accordingly, it will
3 be recommended that the Court grant

Respondent’s motion to dismiss

4 the petition due to Petitioner’s failure to exhaust his claims in
5 state court.
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III.

Procedural Default

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Respondent argues that the CSC’s citation of Dexter reflects

8 Petitioner’s procedural default as to all Petitioner’s claims, which
9 bars consideration of the claims in this Court and warrants
10 dismissal of the petition.

Petitioner argues he can show cause and

11 prejudice to excuse any procedural default, such as any failure to
12 exhaust administrative remedies; further, it would be a fundamental
13 miscarriage of justice to dismiss his petition.
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A. Legal Standards
The doctrine of procedural default is a specific application of

16 the more general doctrine of independent state grounds.

It provides

17 that when state court decision on a claim rests on a prisoner=s
18 violation of either a state procedural rule that bars adjudication
19 of the case on the merits or a state substantive rule that is
20 dispositive of the case, and the state law ground is independent of
21 the federal question and adequate to support the judgment such that
22 direct review in the United States Supreme Court would be barred,
23 the prisoner may not raise the claim in federal habeas absent a
24 showing of cause and prejudice or that a failure to consider the
25 claim will result in a fundamental miscarriage of justice.

Walker

26 v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v.
27 Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d
28 573, 580 (9th Cir. 2003); Wells v. Maass, 28 F.3d 1005, 1008 (9th
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1 Cir. 1994). The doctrine applies regardless of whether the default
2 occurred at trial, on appeal, or on state collateral review.
3 Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

Petitioner is

4 barred from raising the defaulted claims unless the petitioner can
5 1) excuse the default by demonstrating cause for the default and
6 actual prejudice as a result, or 2) show that the case comes within
7 the category of cases the Supreme Court has characterized as
8 fundamental miscarriages of justice.

Coleman v. Thompson, 501 U.S.

9 at 722.
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B.

Failure to Exhaust Administrative Remedies
as an Independent and Adequate State Ground
for the Decision

The status of California’s administrative exhaustion
requirement as an independent and adequate state ground for decision
has been recently summarized by this Court as follows:
California's administrative exhaustion rule is based
solely on state law and is therefore independent of
federal law. See Carter v. Giurbino, 385 F.3d 1194, 1197
(9th Cir.2004) (“A state ground is independent only if it
is not interwoven with federal law.”); see also Cal.Code
Regs. tit. 15, § 3084.1(a) (prisoners may appeal “any
policy, decision, action, condition, or omission by the
department or its staff that the inmate or parolee can
demonstrate as having a material adverse effect upon his
or her health, safety, or welfare.”). District courts in
California have consistently held that if the California
Supreme Court denies a petition with a citation to In re
Dexter federal habeas review is procedurally barred
because California's administrative exhaustion rule is
both independent of federal law and adequate to support
the state court judgment. See, e.g., Riley v. Grounds, No.
C–13–2524 TEH (PR), 2014 WL 988986 at *4 (N.D.Cal. March
11, 2014) (granting motion to dismiss petition as
procedurally barred in light of California Supreme Court
summary denial with a citation to In re Dexter); Yeh v.
Hamilton, 1:13–cv–00335 AWI GSA HC, 2013 WL 3773869 at *2–
3 (E.D.Cal. July 17, 2013) (petitioner's claims
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procedurally barred after California Supreme Court denied
state petition with citation to In re Dexter); Foster v.
Cate, 1:12–cv–01539 AWI BAM HC, 2013 WL 1499481 at *3–4
(E.D.Cal. April 11, 2013) (California Supreme Court's
citation to In re Dexter is both independent and adequate
and therefore respondent is correct that federal habeas
review is procedurally barred); Chatman v. McDonald, No.
2:08–cv–2054 KJM EFB P, 2012 WL 6020030 at *2
(E.D.Cal.Dec.3, 2012) (“Because [exhaustion of
administrative remedies] is an adequate and independent
state law ground for denying him relief, this court may
not reach the merits of petitioner's claims ....”); Garner
v. Yates, No. 1:11–cv–02051 LJO GSA HC, 2012 WL 1192847 at
*4–5 (E.D.Cal.Apr.10, 2012) (federal habeas review is
barred because California Supreme Court denied his
petition with citation to In re Dexter, which is an
independent and adequate state procedural ground); McCann,
2011 WL 6750056 at *3–4 (claims procedurally barred
because In re Dexter administrative exhaustion rule is
both independent and adequate).
Thompson v. Macomber, no. 2:14–cv–1787–GEB–GGH, 2015 WL 222583, at
*3 (E.D.Cal. Jan. 14, 2015) (unpublished).
Here, the CSC’s decision to deny the petition was expressly
based on an independent and adequate state ground for decision.
Accordingly, this Court’s review of Petitioner’s claims is barred
unless Petitioner demonstrates: 1) cause for the default and actual
prejudice resulting from the alleged violation of federal law, or 2)
a fundamental miscarriage of justice.

Harris, 489 U.S. at 262, 109

S.Ct. at 1043.
C.

Cause, Prejudice, and Miscarriage of Justice

Petitioner relies in part on cases concerning 42 U.S.C.
§ 1983 regarding futility of exhaustion or prevention from
exhaustion.
Cause is a legitimate excuse for the default.
945 F.2d 1119, 1123 (9th Cir. 1991).

Thomas v. Lewis,

To establish cause, the

petitioner must show that some objective factor external to the
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1 defense impeded efforts to construct or raise a claim, such as a
2 showing that the factual or legal basis for a claim was not
3 reasonably available, counsel was ineffective in failing to preserve
4 a claim, or some interference by officials made compliance
5 impracticable.

Coleman v. Thompson, 501 U.S. at 753 (citing Murray

6 v. Carrier, 477 U.S. 478, 488, 492 (1986)).
7

Here, Petitioner has not alleged any facts to support a

8 conclusion that there was any objective factor external to the
9 defense that impeded efforts to construct or raise a claim.
10 Petitioner=s staff complaint showed he knew the factual basis for his
11 claim, and there is no basis for an inference that the legal basis
12 of his claim was not reasonably available.

Petitioner was not

13 represented by counsel, and there is no indication of any
14 interference by officials.

The documentation submitted by

15 Petitioner does not demonstrate any failure of procedural due
16 process.
17

With respect to prejudice, a petitioner must show that actual

18 prejudice resulted from the inability to raise the issue.
19 Carrier, 477 U.S. 478, 494 (1986).

Murray v.

This entails a showing that the

20 errors worked to the petitioner’s “actual and substantial
21 disadvantage, infecting his entire trial with error of
22 constitutional dimensions.”

Murray, 477 U.S. at 494 (quoting United

23 States v. Frady, 456 U.S. 152, 170 (1982)); Leavitt v. Arave, 383
24 F.3d 809, 830 (9th Cir. 2004); Correll v. Stewart, 137 F.3d 1404,
25 1415-16 (9th Cir. 1998).
26

Here, the evidence was in conflict, but the evidence clearly

27 preponderated in favor of the findings, including multiple reliable,
28 confidential sources that corroborated each other; independent
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1 institutional records of Petitioner’s location; and the physical
2 evidence of injuries to the victim.

The records of the disciplinary

3 proceeding submitted by Petitioner demonstrate that the original
4 rules violation report was re-issued, and Petitioner acknowledged
5 compliance with notice and time requirements.

(Doc. 10, 46.)

6 Petitioner’s generalized allegation of interest is contradicted by
7 the record, which reflects that the hearing officer considered all
8 the evidence, stated that he determined that the confidential
9 information was more reliable, and set forth the basis for his
10 decision.

The record does not show or even suggest how any defense

11 of Petitioner was obstructed or diminished.

In sum, Petitioner has

12 not shown any actual prejudice.
13

Finally, Petitioner has not shown that his case comes within

14 the category of fundamental miscarriages of justice.

It is

15 therefore concluded that Petitioner’s procedural default precludes
16 review of Petitioner’s claims, and that dismissal is appropriate.
17

IV.

Certificate of Appealability

18

Unless a circuit justice or judge issues a certificate of

19 appealability, an appeal may not be taken to the Court of Appeals
20 from the final order in a habeas proceeding in which the detention
21 complained of arises out of process issued by a state court.

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22 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
23 (2003).

A district court must issue or deny a certificate of

24 appealability when it enters a final order adverse to the applicant.
25 Habeas Rule 11(a).
26

A certificate of appealability may issue only if the applicant

27 makes a substantial showing of the denial of a constitutional right.
28 ' 2253(c)(2).

Under this standard, a petitioner must show that
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1 reasonable jurists could debate whether the petition should have
2 been resolved in a different manner or that the issues presented
3 were adequate to deserve encouragement to proceed further.

Miller-

4 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
5 473, 484 (2000)).

A certificate should issue if the Petitioner

6 shows that jurists of reason would find it debatable whether: (1)
7 the petition states a valid claim of the denial of a constitutional
8 right, and (2) the district court was correct in any procedural
9 ruling.
10

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

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

11 claims in the habeas petition, generally assesses their merits, and
12 determines whether the resolution was debatable among jurists of
13 reason or wrong.

Id.

An applicant must show more than an absence

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

Miller-El v.

16 Cockrell, 537 U.S. at 338.
17

Here, it does not appear that reasonable jurists could debate

18 whether the petition should have been resolved in a different
19 manner.

Petitioner has not made a substantial showing of the denial

20 of a constitutional right.

Accordingly, it will be recommended that

21 the Court decline to issue a certificate of appealability.
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V.

Recommendations

23

Based on the foregoing, it is RECOMMENDED that:

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1)

The Respondent’s motion to dismiss the petition be GRANTED;

25

2)

The petition for writ of habeas corpus be DISMISSED for

26 Petitioner’s failure to exhaust state court remedies and his
27 procedural default;
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3)

The Court DECLINE to issue a certificate of apepalability;

3

4)

The Clerk be DIRECTED to close the case.

4

These findings and recommendations are submitted to the United

1
2 and

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

Within thirty (30) days after being served

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

Such a document should be

11 captioned AObjections to Magistrate Judge=s Findings and
12 Recommendations.@

Replies to the objections shall be served and

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

The Court will then review

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

February 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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