United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO.
28) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Petitioner
is a state prisoner proceeding in propria persona with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On September 17, 2019, the Magistrate Judge
assigned to the case issued Findings and Recommendation to
deny the petition on its merits. (Doc. No. 28.) This Findings
and Recommendation was served upon all parties and contained
notice that any objections were to be filed within twenty-one
days from the date of service of that order. On November 8,
2019, Petitioner filed objections to the Magistrate
Judge's Findings and Recommendations. (Doc. No. 32.)
In the
objections, Petitioner argues that because the federal court
is bound by the highest court of the state in interpreting
state law, the Magistrate Judge's recommendation that
this Court find that the Fifth DCA correctly interpreted
state law as to provocation is in error. (Doc. 32 at 5-6.)
Petitioner additionally contends that the trial court was
required to independently instruct the jury on the elements
of the offense of murder, including what type of provocation
would negate the malice element whether the defense requested
such an instruction or not. (Doc. 32 at 6-7.)
Petitioner's arguments relate to the trial court's
instruction on provocation. However, as discussed in the
Findings and Recommendations, the claim is not cognizable on
federal habeas and should be rejected, and the claim is
without merit. (Doc. 28 at 24-25.)
In
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), the Court has conducted a de novo review of the
case. Having carefully reviewed the entire file, including
Petitioner's objections, the Court concludes that the
Magistrate Judge's Findings and Recommendation is
supported by the record and proper analysis. Petitioner's
objections present no grounds for questioning the Magistrate
Judge's analysis.
In
addition, the Court declines to issue a certificate of
appealability. A state prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district
court's denial of his petition, and an appeal is only
allowed in certain circumstances. Miller-El v.
Cockrell, 537 U.S. 322, 335-336 (2003). The controlling
statute in determining whether to issue a certificate of
appealability is 28 U.S.C. § 2253, which provides as
follows:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).
If a
court denies a petitioner's petition, the court may only
issue a certificate of appealability when a petitioner makes
a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). To make a substantial
showing, the petitioner must establish that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.'”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
In the
present case, the Court finds that Petitioner has not made
the required substantial showing of the denial of a
constitutional right to justify the issuance of a certificate
of appealability. Reasonable jurists would not find the
Court's determination that Petitioner is not entitled to
federal habeas corpus relief debatable, wrong, or deserving
...