(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)

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Case 1:20-cv-00602-DAD-EPG Document 31 Filed 09/07/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME DRISCOLL, 12 Petitioner, 13 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, v. 14 No. 1:20-cv-00602-DAD-EPG (HC) R. FISHER, JR., 15 (Doc. No. 25) Respondent. 16 17 Petitioner Jerome Driscoll is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 12, 2021, the assigned magistrate judge issued findings and 21 recommendations recommending that the petition be denied. (Doc. No. 25.) Specifically, the 22 magistrate judge concluded that petitioner was not entitled to federal habeas relief with respect to 23 his ineffective assistance of counsel claims, on the merits, because he had failed to demonstrate 24 that either his trial counsel or his appellate counsel acted outside the range of reasonable 25 professional assistance. (Id. at 15–17.) The magistrate judge also found petitioner’s remaining 26 claims to not be cognizable in this federal habeas proceeding because they were merely claiming 27 error in the state oust-conviction review process. (Id. at 18.) The findings and recommendations 28 were served on the parties and contained notice that any objections thereto were to be filed within 1 Case 1:20-cv-00602-DAD-EPG Document 31 Filed 09/07/21 Page 2 of 3 1 thirty (30) days after service. (Id. at 19.) After receiving several extensions of time to do so, 2 petitioner filed timely objections. (Doc. No. 30.) 3 In his objections, petitioner argues that his trial counsel’s failure to contest the joinder of 4 two cases for purposes of his criminal trial was sufficient to establish ineffective assistance of 5 counsel. (Id.) The assigned magistrate judge found that petitioner raised his ineffective 6 assistance of counsel claims in all of his state habeas petitions and reviewed petitioner’s claim on 7 the merits applying the deferential standard of review under the AEDPA. (Doc. No. 25 at 14.) 8 The undersigned finds the magistrate judge’s analysis to be well reasoned. Petitioner’s objections 9 to the pending findings and recommendations are therefore unpersuasive. 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 11 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 12 objections, the court concludes the pending findings and recommendations to be supported by the 13 record and proper analysis. 14 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 15 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 16 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 17 petition on the merits, the court may only issue a certificate of appealability “if jurists of reason 18 could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 19 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 20 further.” Miller-El, 537 U.S. at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). 21 While the petitioner is not required to prove the merits of his case, he must demonstrate 22 “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” 23 Miller-El, 537 U.S. at 338. 24 In the present case, the court finds that reasonable jurists would not find the court’s 25 determination that the petition should be denied debatable or wrong, or that the issues presented 26 are deserving of encouragement to proceed further. Petitioner has not made the required 27 substantial showing of the denial of a constitutional right. Therefore, the court will decline to 28 issue a certificate of appealability. 2 Case 1:20-cv-00602-DAD-EPG Document 31 Filed 09/07/21 Page 3 of 3 1 Accordingly, 2 1. 3 The findings and recommendation issued on February 12, 2021 (Doc. No. 25) are adopted; 4 2. The petition for writ of habeas corpus is denied; 5 3. The Clerk of the Court is directed to close the case; and 6 4. The court declines to issue a certificate of appealability. 7 8 IT IS SO ORDERED. Dated: September 5, 2021 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

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