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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 CLIFFORD PATTERSON, 14 CASE NO. 13cv1536-MMA (DHB) Petitioner, 15 16 v. [Doc. No. 15] 17 DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS 18 19 20 21 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 22 23 24 25 26 27 28 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 -1- 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. 5 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. 9 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 17 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. 21 22 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 25 26 1 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. -2- 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. 9 10 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. 13 IT IS SO ORDERED. 14 15 DATED: January 30, 2015 16 17 18 Hon. Michael M. Anello United States District Judge 19 20 21 22 23 24 25 26 27 28 -3- 13cv1536-MMA (DHB)

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