(HC) Andrews v. Koenig

Filing 42

ORDER ADOPTING 36 Findings and Recommendations and GRANTING 22 Motion to Dismiss and declining to issue a certificate of appealability signed by District Judge Dale A. Drozd on 7/29/2022. CASE CLOSED. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID ANDREWS,

12
13
14
15
16
17
18
19

No. 1:21-cv-00168-DAD-EPG (HC)

Plaintiff,
v.
C. KOENIG,
Defendant.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING
RESPONDENT’S MOTION TO DISMISS,
TERMINING PETITIONER’S MOTION TO
CORRECT CLERICAL MISTAKE,
DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS, DIRECTING CLERK OF
THE COURT TO CLOSE CASE, AND
DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY
(Doc. Nos. 22, 36, 40)

20
21

Petitioner David Andrews is a state prisoner proceeding pro se with a petition for writ of

22

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

23

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

24

On October 21, 2021, the assigned magistrate judge issued findings and

25

recommendations, recommending that respondent’s motion to dismiss (Doc. No. 22) be granted

26

and petitioner’s application for federal habeas relief (Doc. No. 1) be dismissed for failure to state

27

a cognizable federal habeas claim and as an unauthorized successive petition. (Doc. No. 36.)

28

Those findings and recommendations were served on petitioner and contained notice that any
1

1

objections thereto were to be filed within thirty (30) days of service. (Id. at 6.) On December 20,

2

2021, petitioner filed timely objections and a motion to correct a clerical mistake.1 (Doc. Nos. 39,

3

40.) Therein, petitioner does not meaningfully challenge the assigned magistrate judge’s

4

conclusion that petitioner’s application for federal habeas relief should be dismissed as an

5

unauthorized second or successive petition. Petitioner’s repeated argument that he was denied

6

counsel in connection with his § 1170.95 state court petition is similarly unavailing. The

7

California Supreme Court has held that a petitioner is not constitutionally entitled to counsel at

8

the outset of the filing of a § 1170.95 petition unless he has established a prima face case for

9

postconviction relief, which as the pending findings and recommendations note, petitioner did not

10

do here at the state court level. (See Doc. No. 36 at 3); see also People v. Lewis, 11 Cal. 5th 952,

11

973 (2021).

12

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

13

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

14

objections, the court concludes that the findings and recommendations are supported by the

15

record and by proper legal analysis.

16

Having found that petitioner is not entitled to habeas relief, the court now turns to whether

17

a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no

18

absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only

19

allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C.

20

§ 2253. The court should issue a certificate of appealability if “reasonable jurists could debate

21

whether (or, for that matter, agree that) the petition should have been resolved in a different

22

manner or that the issues presented were ‘adequate to deserve encouragement to proceed

23

further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

24

880, 893 & n.4 (1983)).

25

1

26
27
28

On September 20, 2021, the assigned magistrate judge denied petitioner’s numerous discovery
and document requests. (Doc. No. 33.) As noted in petitioner’s motion to correct a clerical
mistake, the caption of the September 20, 2021 order listed the wrong case number. However,
the order was correctly docketed in the instant case and there is therefore no risk that the noted
clerical error could “potentially exclude the denial of Petitioner’s motions from the record,” as he
has asserted. (Doc. No. 40 at 2.) Accordingly, the noted clerical error was harmless.
2

1

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

2

determination that the petition should be dismissed debatable or wrong, or that petitioner should

3

be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability.

4

Accordingly,

5

1.

6

The findings and recommendations issued on October 21, 2021 (Doc. No. 36) are
adopted;

7

2.

Respondent’s motion to dismiss (Doc. No. 22) is granted;

8

3.

Petitioner’s motion to correct a clerical mistake (Doc. No. 39) is denied;

9

4.

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

10

5.

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

11

6.

The court declines to issue a certificate of appealability.

12
13
14

IT IS SO ORDERED.
Dated:

July 29, 2022
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3