Patterson v. Brown et al

Filing 31

ORDER Adopting Report and Recommendation of United States Magistrate Judge 15 . Denying First Amended Petition for Writ of Habeas Corpus. Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 1/30/2015. (All non-registered users served via U.S. Mail Service)(vam)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLIFFORD PATTERSON,

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CASE NO. 13cv1536-MMA (DHB)
Petitioner,

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v.

[Doc. No. 15]

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DENYING FIRST AMENDED
PETITION FOR WRIT OF
HABEAS CORPUS

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

JEFFREY BEARD, Secretary of the
California Department of Corrections
and Rehabilitation,
Respondent.

[Doc. No. 5]
DECLINING TO ISSUE
CERTIFICATE OF
APPEALABILIY

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Petitioner Clifford Patterson, a state prisoner proceeding pro se, filed a first
amended petition for writ of habeas corpus (“petition”) pursuant to 28 U.S.C. §
2254, challenging his May 25, 2010 conviction and the resulting sixteen-year
sentence for assault with a deadly weapon. See Doc. No. 5. Petitioner raises the
following grounds for relief: (1) breach of plea agreement relating to a prior
conviction; (2) ineffective assistance of counsel during sentencing of a prior
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13cv1536-MMA (DHB)

1 conviction; (3) ineffective assistance of counsel during trial based on the cumulative
2 effective of numerous errors; (4) prosecutorial misconduct; and (5) judicial errors.
3 Respondent answered the Petition. See Doc. No. 12. Petitioner did not file a
4 Traverse.
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The matter was referred to United States Magistrate Judge David H. Bartick

6 for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1),
7 and Civil Local Rule HC.2. Judge Bartick issued a thorough and well-reasoned
8 Report recommending the Court deny the petition. See Doc. No. 15.
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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

10 636(b)(1), the Court must “make a de novo determination of those portions of the
11 report . . . to which objection is made,” and “may accept, reject, or modify, in whole
12 or in part, the findings or recommendations made by the magistrate [judge].” 28
13 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir.
14 1989). Although the Court granted Petitioner four separate extensions of time to do
15 so, Petitioner has not filed an objection to the Report and Recommendation, and the
16 time to do so has now expired. See Doc. Nos. 17, 19, 23, 27.1
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Accordingly, the Court concludes Judge Bartick issued an accurate report and

18 well-reasoned recommendation. The Court ADOPTS the Report and
19 Recommendation in its entirety and DENIES Petitioner’s first amended petition
20 with prejudice.
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CERTIFICATE OF APPEALABILITY
Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the

23 district court must issue or deny a certificate of appealability when it enters a final
24 order adverse to the applicant.” A certificate of appealability is not issued unless
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The Court notes that it declined Plaintiff’s ex parte request for a fifth extension
of time to file an objection. See Doc. No. 30. The Court reasoned that because
27 Petitioner had previously received four extensions of time—and therefore had almost
six months to file an objection—Petitioner had sufficient time to file an objection and
28 had not demonstrated good cause under Federal Rule of Civil Procedure 6(b) to warrant
a further extension of time. See id.
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13cv1536-MMA (DHB)

1 there is “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could
3 debate whether the petition should have been resolved in a different manner or that
4 the issues presented were adequate to deserve encouragement to proceed further.
5 Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529
6 U.S. 473, 484 (2000)). For the reasons set forth in the Report and Recommendation
7 and incorporated herein, the Court finds that this standard has not been met and
8 therefore DECLINES to issue a certificate of appealability in this case.
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CONCLUSION
Based on the foregoing, the Court ADOPTS the Report and Recommendation

11 in its entirety and DENIES Petitioner’s first amended petition with prejudice. The
12 Court further DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.

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15 DATED: January 30, 2015
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Hon. Michael M. Anello
United States District Judge

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