Franco v. Espinoza

Filing 33

ORDER ADOPTING 29 Findings and Recommendations and Denying Petition for Writ of Habeas Corpus signed by District Judge Dale A. Drozd on 01/22/2020. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIA ANTONIA FRANCO,

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No. 1:18-cv-00057-DAD-SKO (HC)

Petitioner,
v.
JANEL ESPINOZA,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PETITION FOR WRIT OF HABEAS
CORPUS

Respondent.
(Doc. No. 29)

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Petitioner Maria Antonia Franco is a state prisoner proceeding with counsel with a petition

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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a magistrate

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judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 6, 2019, the assigned magistrate judge issued findings and recommendations

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recommending that the pending petition be denied on the merits. (Doc. No. 29.) Specifically, the

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magistrate judge found that each of the three grounds for habeas relief asserted in petitioner’s

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pending petition—(1) the prosecution failed to prove beyond a reasonable doubt that petitioner

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personally discharged a firearm that caused great bodily injury; (2) the trial court failed to use a

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pattern instruction that “fully define[d] proximate cause”; and (3) petitioner received ineffective

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assistance of counsel at trial—fail on their merits. (Id. at 6–20.) The findings and

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recommendations were served on petitioner and contained notice that any objections thereto were
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to be filed within ten (10) days after service. (Id. at 20.) After seeking and receiving an

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extension of time to file objections, petitioner filed objections on November 18, 2019. (Doc. Nos.

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30, 31, 32.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including petitioner’s objections, the court finds the findings and recommendations to be

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supported by the record and proper analysis.

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In her objections, petitioner does not meaningfully dispute the magistrate judge’s finding
that each of the three grounds for federal habeas relief she asserts fails on the merits. The

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pending findings and recommendations lay out the standards of review for each of the three

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asserted grounds and explains why the pending petition falls short of satisfying those standards

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for the granting of relief. The objections do not dispute or even address these standards and,

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instead, offer additional arguments in support of the three grounds for relief asserted by

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petitioner. (See generally Doc. No. 32.) For example, petitioner asserts that “no fairminded jurist

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would agree that Franco’s gunshot to Lopez’s left side or flank[] caused any great bodily injury”

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and that “[t]he record is clear and convincing that it was a graze wound which just nicked the

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skin” (id. at 4) (internal quotation marks omitted), but does not respond to the magistrate judge’s

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finding that petitioner failed to show (1) that the state court’s determination that petitioner’s

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actions were a substantial factor in causing the injuries sustained by the victim was unreasonable

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or (2) that the state court’s rejection of this claim was contrary to or an unreasonable application

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of the law (Doc. No. 29 at 10). Petitioner’s objections to the recommended denial of her second

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and third grounds for federal habeas relief are similarly deficient. For example, even if the court

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were to accept petitioner’s argument that the jury instruction given at her trial with respect to

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defining “proximate cause” omitted language requiring “a chronological or temporal requirement

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to the causation” (Doc. No. 32 at 9), petitioner does not contend that this purported instructional

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error had a substantial or injurious effect or influence on the jury’s verdict (Doc. No. 29 at 14).

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And, even if the court accepts petitioner’s assertion that her trial counsel could have pursued

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other avenues of investigation (Doc. No. 32 at 12), petitioner does not dispute the findings of the
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state court and the magistrate judge that she suffered no prejudice as a result of her trial counsel’s

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alleged ineffectiveness (Doc. No. 29 at 19). Because petitioner’s objections are unpersuasive and

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the analysis set forth in the pending findings and recommendations is sound, the court will adopt

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the June 6, 2019 findings and recommendations in full.

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Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to

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appeal a district court’s denial of his petition, and an appeal is only allowed in certain

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circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal

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rules governing habeas cases brought by state prisoners require a district court issuing an order

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denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules

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Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the

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applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C.

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§ 2253(c)(2), and the certificate must indicate which issues satisfy this standard, id. at (c)(3).

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“Where a district court has rejected the constitutional claims on the merits, the showing required

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to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists

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would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing.

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Accordingly, a certificate of appealability will not be issued.

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For the reasons set forth above,

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The June 6, 2019 findings and recommendations (Doc. No. 29) are adopted in full;

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2.

The petition for writ of habeas corpus (Doc. No. 1) is denied;

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3.

The Clerk of the Court is directed to close this case; and

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4.

The court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

January 22, 2020
UNITED STATES DISTRICT JUDGE

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