United States District Court, E.D. California
ORDER
Petitioner,
a state prisoner proceeding pro se, has filed this
application for a writ of habeas corpus under 28 U.S.C.
§ 2254. The matter was referred to a United States
Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
On June
6, 2019, the magistrate judge filed findings and
recommendations, which were served on all parties and which
contained notice to all parties that any objections to the
findings and recommendations were to be filed within
twenty-one days. On June 28, 2019, petitioner
timely[1] filed objections to the findings and
recommendations. ECF No. 38. He filed supplements to those
objections on July 1, 2019 and July 26, 2019. ECF Nos. 39,
40. He has also filed a request for entry of default against
respondent, ECF No. 35, and a motion to disqualify both the
undersigned and the assigned magistrate judge. ECF No. 36.
On July
31, 2019, this court issued an order directing respondent to
respond to petitioner's request to proceed with this
action on the ground of alleged undue delay in the state
court system and granting petitioner an opportunity to reply
to respondent's response. ECF No. 41. Respondent filed
the required response on August 13, 2019. ECF No. 42.
Petitioner filed a reply on August 22, 2019, ECF No. 43,
supplements on August 29, 2019 and September 23, 2019, and a
motion to expedite, which includes a second motion for
recusal of the undersigned, on October 18, 2019. ECF No. 46.
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, this court has conducted a
de novo review of this case. Having reviewed the
file, the court finds the findings and recommendations to be
supported by the record and by proper analysis, as explained
below.
In his
objections, petitioner requests release on bail or his own
recognizance pending disposition of this petition. ECF No. 38
at 1. Petitioner's request is without merit and, in any
event, is mooted by this order dismissing the petition. As
noted above, petitioner also requests that the court proceed
with this action in spite of the pendency of his direct
appeal in state court on the ground of alleged undue delay in
the state court system. Respondent's response to this
court's July 31, 2019 order demonstrates that
petitioner's state court appeal has not been unduly
delayed, nor has it been delayed for reasons that would
permit this court to exercise jurisdiction over the petition
during the pendency of his state court appeal. Cf.
Edelbacher v. Calderon, 160 F.3d 582, 586 (9th Cir.
1998) (citing Phillips v. Vasquez, 56 F.3d 1030 (9th
Cir. 1995)). Petitioner's appeal has been pending in
state court for less than two years, briefing on the appeal
has been completed for just over six months, see ECF
No. 42 at 2 and evidence cited therein, and the state court
of appeal deemed the appeal submitted without oral argument
on September 24, 2019. See The People v. Robben,
Case No. C086090.[2] There is no evidence of undue delay in the
disposition of petitioner's appeal.
Petitioner
also requests appointment of counsel. ECF No. 38 at 1. There
is no absolute right to appointment of counsel in habeas
proceedings. See Nevius v. Sumner, 105 F.3d 453, 460
(9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes
the appointment of counsel at any stage of the case “if
the interests of justice so require.” See Rule
8(c), Fed. R. Governing § 2254 Cases. The court does not
find that the interests of justice would be served by the
appointment of counsel to represent petitioner in this
action, which must be dismissed without prejudice for the
reasons explained in the magistrate judge's findings and
recommendations.
Petitioner
moves to disqualify both the undersigned and the assigned
magistrate judge, asserting that “[t]his case has been
delayed for way too long.” ECF No. 36; see
also ECF No. 46. This assertion is without merit. This
action was filed September 17, 2018 and will, by entry of
this order, be resolved just slightly over one year after it
was filed. Petitioner's motions will be denied.
Under
Rule 11(a) of the Federal Rules Governing Section 2254 Cases,
the court has considered whether to issue a certificate of
appealability. Before petitioner can appeal this decision, a
certificate of appealability must issue. See 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the
petition is denied on the merits, a certificate of
appealability may issue under 28 U.S.C. § 2253
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The court must either issue a certificate
of appealability indicating which issues satisfy the required
showing or must state the reasons why such a certificate
should not issue. See Fed. R. App. P. 22(b). Where
the petition is dismissed on procedural grounds, a
certificate of appealability “should issue if the
prisoner can show: (1) ‘that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling'; and (2) ‘that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional
right.'” Morris v. Woodford, 229 F.3d 775,
780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529
U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons set
forth in the Magistrate Judge's findings and
recommendations, the court finds that issuance of a
certificate of appealability is not warranted in this case.
Accordingly,
IT IS HEREBY ORDERED that:
1. Petitioner's motions to disqualify the magistrate
judge and the undersigned district judge assigned to this
case, ECF Nos. 36 and 46, are denied;
2. Petitioner's motion to expedite, ECF No. 46, is denied
as moot;
3. Petitioner's request for release on bail or his own
recognizance, ECF No. 38, is denied;
4. Petitioner's request for appointment of counsel, ECF
No. 38, is denied;
5. The findings and recommendations filed June 6, 2019, ECF
No. 32, are ...