(HC) Cuevas v. Sullivan, No. 1:2018cv01281 - Document 45 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 42 Findings and Recommendations to Deny 8 Petition for Writ of Habeas Corpus, signed by District Judge Dale A. Drozd on 12/14/2020. Certificate of Appealability is Declined. CASE CLOSED. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS KELLY CUEVAS, 12 13 14 15 Petitioner, v. No. 1:18-cv-01281-NONE-HBK (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS J. SULLIVAN, (Doc. Nos. 8, 42) Respondent. 16 17 Petitioner Jose Luis Kelly Cuevas is a state prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a 19 105-year–to–life term of imprisonment following his conviction, following a 2015 jury trial in the 20 Fresno County Superior Court, on three counts of sexual intercourse or sodomy with a child 21 under the age of ten in violation of California Penal Code § 288.7(a) and two counts of oral 22 copulation or sexual penetration of a child under 10 years of age in violation of California Penal 23 Code § 288.7(b). (Doc. No. 36-12 at 2, 5.) Petitioner appealed from his judgment of conviction 24 and sentence to the California Court of Appeal and the judgment of conviction was affirmed. 25 (Doc. Nos. 36-12.) Thereafter, petitioner sought state habeas relief on grounds of ineffective 26 assistance of counsel and disproportionate sentence, but his application was denied by the 27 California Supreme Court. (Doc. Nos.36-15, 41.) Petitioner now seeks federal habeas relief on 28 the same grounds rejected by the state courts. (Doc. No. 8.) 1 1 Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas 2 petition was referred to a United States Magistrate Judge. On September 30, 2020, the assigned 3 magistrate judge issued findings and recommendations finding that petitioner had failed to 4 establish prejudice as a result of his counsel’s alleged ineffective assistance and had also failed to 5 demonstrate that the sentence imposed by the state court trial court was grossly disproportionate 6 to his crimes of conviction in violation of the Eighth Amendment. (Doc. No. 42 at 10, 12–14.) 7 Accordingly, it was recommended that the pending petition for federal habeas relief be denied. 8 (Id. at 14.) Petitioner has filed timely objections to the findings and recommendations. (Doc. No. 9 43.) 10 The undersigned has reviewed this case de novo pursuant to 28 U.S.C. § 636 (b)(1)(B) and 11 Local Rule 304. Based upon that review the undersigned finds the pending findings and 12 recommendations to be supported by the record and proper analysis. In addition, the undersigned 13 also finds that petitioner’s objections fail to meaningfully address or call into question the 14 analysis set forth in the findings and recommendations. Accordingly, the findings and 15 recommendations will be adopted. 16 The court must now turn to whether a certificate of appealability should be issued. A 17 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 18 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 19 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 20 appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 21 petition should have been resolved in a different manner or that the issues presented were 22 ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 23 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In the present case, the court 24 finds that reasonable jurists would not find the court’s determination that the petition should be 25 dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, 26 the court declines to issue a certificate of appealability. 27 ///// 28 ///// 2 1 Accordingly, the court orders as follows: 2 1. The findings and recommendations issued on September 30, 2020 (Doc. No. 42) are 3 ADOPTED in full; 4 2. The petition for writ of habeas corpus (Doc. No. 8) is DENIED; 5 3. The court DECLINES to issue a certificate of appealability; and 6 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purposes of 7 8 9 closure and to close this case. IT IS SO ORDERED. Dated: December 14, 2020 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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