(HC) Cuevas v. Sullivan
Filing
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ORDER ADOPTING 42 Findings and Recommendations to Deny 8 Petition for Writ of Habeas Corpus, signed by District Judge Dale A. Drozd on 12/14/2020. Certificate of Appealability is Declined. CASE CLOSED. (Rivera, O)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSE LUIS KELLY CUEVAS,
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Petitioner,
v.
No. 1:18-cv-01281-NONE-HBK (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PETITION FOR WRIT OF HABEAS
CORPUS
J. SULLIVAN,
(Doc. Nos. 8, 42)
Respondent.
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Petitioner Jose Luis Kelly Cuevas is a state prisoner proceeding in propria persona with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a
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105-year–to–life term of imprisonment following his conviction, following a 2015 jury trial in the
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Fresno County Superior Court, on three counts of sexual intercourse or sodomy with a child
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under the age of ten in violation of California Penal Code § 288.7(a) and two counts of oral
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copulation or sexual penetration of a child under 10 years of age in violation of California Penal
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Code § 288.7(b). (Doc. No. 36-12 at 2, 5.) Petitioner appealed from his judgment of conviction
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and sentence to the California Court of Appeal and the judgment of conviction was affirmed.
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(Doc. Nos. 36-12.) Thereafter, petitioner sought state habeas relief on grounds of ineffective
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assistance of counsel and disproportionate sentence, but his application was denied by the
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California Supreme Court. (Doc. Nos.36-15, 41.) Petitioner now seeks federal habeas relief on
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the same grounds rejected by the state courts. (Doc. No. 8.)
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Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas
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petition was referred to a United States Magistrate Judge. On September 30, 2020, the assigned
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magistrate judge issued findings and recommendations finding that petitioner had failed to
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establish prejudice as a result of his counsel’s alleged ineffective assistance and had also failed to
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demonstrate that the sentence imposed by the state court trial court was grossly disproportionate
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to his crimes of conviction in violation of the Eighth Amendment. (Doc. No. 42 at 10, 12–14.)
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Accordingly, it was recommended that the pending petition for federal habeas relief be denied.
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(Id. at 14.) Petitioner has filed timely objections to the findings and recommendations. (Doc. No.
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43.)
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The undersigned has reviewed this case de novo pursuant to 28 U.S.C. § 636 (b)(1)(B) and
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Local Rule 304. Based upon that review the undersigned finds the pending findings and
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recommendations to be supported by the record and proper analysis. In addition, the undersigned
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also finds that petitioner’s objections fail to meaningfully address or call into question the
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analysis set forth in the findings and recommendations. Accordingly, the findings and
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recommendations will be adopted.
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The court must now turn to whether a certificate of appealability should be issued. A
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petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
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denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v.
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Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of
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appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the
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petition should have been resolved in a different manner or that the issues presented were
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‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484
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(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In the present case, the court
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finds that reasonable jurists would not find the court’s determination that the petition should be
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dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore,
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the court declines to issue a certificate of appealability.
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Accordingly, the court orders as follows:
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1. The findings and recommendations issued on September 30, 2020 (Doc. No. 42) are
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ADOPTED in full;
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2. The petition for writ of habeas corpus (Doc. No. 8) is DENIED;
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3. The court DECLINES to issue a certificate of appealability; and
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4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purposes of
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closure and to close this case.
IT IS SO ORDERED.
Dated:
December 14, 2020
UNITED STATES DISTRICT JUDGE
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