(HC) Driscoll v. Fisher

Filing 31

ORDER ADOPTING 25 Findings and Recommendations, signed by District Judge Dale A. Drozd on 9/5/2021. Certificate of appealability is declined. CASE CLOSED. (Rivera, O)

Case 1:20-cv-00602-DAD-EPG Document 31 Filed 09/07/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEROME DRISCOLL,

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Petitioner,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS,

v.

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No. 1:20-cv-00602-DAD-EPG (HC)

R. FISHER, JR.,

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(Doc. No. 25)
Respondent.

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Petitioner Jerome Driscoll is a state prisoner proceeding pro se with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States

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

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On February 12, 2021, the assigned magistrate judge issued findings and

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recommendations recommending that the petition be denied. (Doc. No. 25.) Specifically, the

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magistrate judge concluded that petitioner was not entitled to federal habeas relief with respect to

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his ineffective assistance of counsel claims, on the merits, because he had failed to demonstrate

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that either his trial counsel or his appellate counsel acted outside the range of reasonable

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professional assistance. (Id. at 15–17.) The magistrate judge also found petitioner’s remaining

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claims to not be cognizable in this federal habeas proceeding because they were merely claiming

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error in the state oust-conviction review process. (Id. at 18.) The findings and recommendations

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were served on the parties and contained notice that any objections thereto were to be filed within
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thirty (30) days after service. (Id. at 19.) After receiving several extensions of time to do so,

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petitioner filed timely objections. (Doc. No. 30.)

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In his objections, petitioner argues that his trial counsel’s failure to contest the joinder of

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two cases for purposes of his criminal trial was sufficient to establish ineffective assistance of

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counsel. (Id.) The assigned magistrate judge found that petitioner raised his ineffective

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assistance of counsel claims in all of his state habeas petitions and reviewed petitioner’s claim on

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the merits applying the deferential standard of review under the AEDPA. (Doc. No. 25 at 14.)

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The undersigned finds the magistrate judge’s analysis to be well reasoned. Petitioner’s objections

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to the pending findings and recommendations are therefore unpersuasive.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including petitioner’s

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objections, the court concludes the pending findings and recommendations to be supported by the

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record and proper analysis.

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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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

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Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas

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petition on the merits, the court may only issue a certificate of appealability “if jurists of reason

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could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that

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jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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While the petitioner is not required to prove the merits of his case, he must demonstrate

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“something more than the absence of frivolity or the existence of mere good faith on his . . . part.”

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Miller-El, 537 U.S. at 338.

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In the present case, the court finds that reasonable jurists would not find the court’s

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determination that the petition should be denied debatable or wrong, or that the issues presented

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are deserving of encouragement to proceed further. Petitioner has not made the required

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substantial showing of the denial of a constitutional right. Therefore, the court will decline to

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issue a certificate of appealability.
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Accordingly,

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1.

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The findings and recommendation issued on February 12, 2021 (Doc. No. 25) are
adopted;

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2.

The petition for writ of habeas corpus is denied;

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3.

The Clerk of the Court is directed to close the 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:

September 5, 2021
UNITED STATES DISTRICT JUDGE

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