Ellis v. Biter
Filing
32
ORDER ADOPTING 31 Findings and Recommendations and DENYING Petition for Writ of Habeas Corpus signed by District Judge Dale A. Drozd on 4/27/2020. CASE CLOSED. (Sant Agata, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
ROBERT LEE ELLIS,
12
Petitioner,
13
v.
14
MARTIN BITER,
15
16
No. 1:17-cv-01443-DAD-JDP (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PETITION FOR WRIT OF HABEAS
CORPUS
Respondent.
(Doc. No. 31)
17
18
19
Petitioner Robert Lee Ellis is a state prisoner proceeding pro se and in forma pauperis
20
with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred
21
to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
22
On March 30, 2020, the assigned magistrate judge issued findings and recommendations
23
recommending that the pending petition for federal habeas relief be denied on the merits. (Doc.
24
No. 31.) Specifically, the magistrate judge found that each of the four grounds for federal habeas
25
relief asserted in petitioner’s pending petition—(1) that the trial court violated his constitutional
26
rights when it denied his motion for a new trial due to juror misconduct; (2) that the trial court
27
violated his constitutional rights when it failed to give an imperfect self-defense jury instruction;
28
(3) that the trial court’s supplemental jury instruction was coercive, violating petitioner’s
1
1
constitutional rights; and (4) that the cumulative effect of the trial court errors warranted the
2
granting of relief—all fail on their merits. (Id. at 5–6, 17.) Those findings and recommendations
3
were served on all parties and contained notice that any objections thereto were to be filed within
4
fourteen (14) days from the date of service. (Id. at 17.) No objections have been filed and the
5
time in which to do so has now passed.
6
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
7
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
8
court finds the findings and recommendations to be supported by the record and proper analysis.
9
Having found that petitioner is not entitled to habeas relief, the court now turns to whether
10
a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no
11
absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed
12
under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336
13
(2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district
14
court issue or deny a certificate of appealability when entering a final order adverse to a
15
petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th
16
Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only
17
issue a certificate of appealability when “the applicant has made a substantial showing of the
18
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the
19
petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree
20
that) the petition should have been resolved in a different manner or that the issues presented
21
were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,
22
484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made
23
such a showing. Therefore, the court declines to issue a certificate of appealability.
24
/////
25
/////
26
/////
27
/////
28
/////
2
1
Accordingly,
2
1.
3
The findings and recommendations issued on March 30, 2020 (Doc. No. 31) are
adopted in full;
4
2.
This petition for writ of habeas corpus (Doc. No. 1) is denied;
5
3.
The court declines to issue a certificate of appealability; and
6
4.
The Clerk of the Court is directed to close this case.
7
8
IT IS SO ORDERED.
Dated:
April 27, 2020
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?