Bernik v. Hatton

Filing 33

ORDER signed by District Judge Dale A. Drozd on 03/01/2024 ADOPTING 25 Findings and Recommendations in full and DENYING 1 Petition for Writ of Habeas Corpus. The Court DECLINES to issue a certificate of appealability. CASE CLOSED.(Lopez, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREY BERNICK,

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Petitioner,

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v.

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SHAWN HATTON, Warden,

No. 2:17-cv-02348-DAD-AC (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PETITION FOR HABEAS RELIEF
(Doc. Nos. 1, 25)

Respondent.1

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Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. In his pending petition for federal habeas relief, petitioner

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challenges his 2011 conviction in the Sacramento County Superior Court for second-degree

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murder in violation of California Penal Code §§ 187(a), 189 with a finding pursuant to California

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Penal Code § 12022.53(b)(c) and (d) that he intentionally and personally used a firearm arm to

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commit the crime resulting in death. (Doc. No. 1.) Petitioner was sentenced to an aggregate

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prison term of 45 years to life: 20 years to life for the murder conviction, plus a consecutive 25

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years to life on the firearm enhancement. (Id. at 12.) In his petition for federal habeas relief,

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petitioner asserts the following claims: (1) he received ineffective assistance when his trial

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counsel failed to move to exclude a purportedly illegally recorded conversation between

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The docket erroneously list respondent Hatton as defendant Hatton. The Clerk of the Court is
requested to correct the docket in this regard.
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petitioner and one Vasily Dovgan; (2) his right to due process was violated by unreasonable pre-

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charging delay in his case; (3) the trial court erred in denying his motion for a new trial which

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was based upon purportedly newly discovered evidence; (4) his right to trial by an impartial jury

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was violated in light of evidence of jury tampering and jury bias; (5) the trial court erred in failing

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to instruct the jury with petitioner’s proposed pinpoint instruction on transferred intent; (6) there

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was insufficient evidence introduced at his trial to support the guilty verdict and to disprove self-

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defense; and (7) he received ineffective assistance due to his appellate counsel’s failure to argue

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on appeal that petitioner’s right to a fair trial was violated when a sheriff’s deputy was stationed

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behind petitioner during his trial testimony. (Id. at 18–44.) The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On July 17, 2023, the assigned magistrate judge issued findings and recommendations

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recommending that the pending petition for federal habeas relief be denied on the merits. (Doc.

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No. 25.) In those extensive and well-reasoned findings and recommendations, each of

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petitioner’s claims were analyzed and addressed in light of the state court’s rulings and the

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applicable legal standards governing the granting of federal habeas relief. (Id. at 4–28.) In doing

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so, the magistrate judge concluded with respect to each of petitioner’s claims that there was

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nothing objectively unreasonable about the state court’s rejection of those claims under 28 U.S.C.

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§ 2254(d) or that petitioner was otherwise not entitled to federal habeas relief. (Id.) Accordingly,

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it was recommended that the pending petition for federal habeas relief be denied. (Id. at 28.)

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The findings and recommendations were served on petitioner with notice that any

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objections thereto were to be filed within twenty-one (21) days of the date of their service. (Id.)

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On December 1, 2023, after receiving three extensions of time in which to do so, petitioner filed

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his objections to the pending findings and recommendations. (Doc. No. 32.) Respondent did not

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file a response to petitioner’s objections.

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In his objections, petitioner stood on his petition and reply brief filed in support of his

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petition and advanced no additional arguments as to his claims 1, 2, and 5. (Id. at 4, 7.) As to his

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claims 3, 4, 6, and 7, petitioner’s counsel did provide some specific basis for objecting to the

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analysis and conclusions set forth in the findings and recommendations. (Id. at 4–10.) However,
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the court finds none of the arguments advanced in the objections to be at all persuasive. In short,

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petitioner’s objections fail to provide any basis for questioning the correctness of the detailed

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analysis of petitioner’s claims set forth in the findings and recommendations.

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

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de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes

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that the magistrate judge’s findings and recommendations are supported by the record and proper

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analysis. Therefore, the findings and recommendations will be adopted and petitioner’s request

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for federal habeas relief will be denied on the merits.

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In addition, the court declines to issue a certificate of appealability. A petitioner seeking

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a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his

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petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S.

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322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court

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may only issue a certificate of appealability if “jurists of reason could disagree with the district

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court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the

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issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.

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at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required

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to prove the merits of his case, he must demonstrate “something more than the absence of

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frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. In the

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present case, the court concludes that reasonable jurists would not find the court’s determination

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that the petition should be denied debatable or wrong, or that the issues presented are deserving of

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encouragement to proceed further. Petitioner has not made the required substantial showing of

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the denial of a constitutional right. Therefore, the court will decline to issue a certificate of

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appealability.

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Accordingly:

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adopted in full;

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The findings and recommendations issued on July 17, 2023 (Doc. No. 25) are

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

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The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and

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The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

March 1, 2024
DALE A. DROZD
UNITED STATES DISTRICT JUDGE

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