(HC) Villa v. Fresno County Superior Court, No. 1:2012cv01585 - Document 22 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Deny the 1 Petition for Writ of Habeas Corpus, Enter Judgment for Respondent, and Decline to Issue a Certificate of Appealability; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 5/26/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/29/2015. (Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ALVARO VILLA, Case No. 1:12-cv-01585-AWI-SKO-HC 12 ORDER SUBSTITUTING RESPONDENT v. 13 Petitioner, 14 JEFFREY A. BEARD, SECRETARY OF THE CALIFORNIA DEPARTMENT OF 15 CORRECTIONS AND REHABILITATION, 16 Respondent. 17 18 19 20 21 22 23 24 25 26 FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on September 27, 2012. Respondent filed an answer on January 29, 2013.1 Petitioner filed a traverse, styled as “Opposition” to the answer, on February 22, 2013. 27 28 1 Although Respondent purported to lodge a state court record in support of the answer (doc. 13), the documents were never lodged with the Court. 1 1 I. Jurisdiction and Order Substituting Respondent 2 Because the petition was filed after April 24, 1996, the 3 effective date of the Antiterrorism and Effective Death Penalty Act 4 of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. 5 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 6 1004 (9th Cir. 1999). 7 The challenged judgment was rendered by the Superior Court of 8 the State of California, County of Fresno (FCSC), which is located 9 within the territorial jurisdiction of this Court. 10 §§ 84(b), 2254(a), 2241(a), (d). 28 U.S.C. Petitioner claims that in the 11 course of the proceedings resulting in his conviction, he suffered 12 violations of his constitutional rights. 13 Accordingly, the Court concludes that it has subject matter 14 jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and 15 2241(c)(3), which authorize a district court to entertain a petition 16 for a writ of habeas corpus by a person in custody pursuant to the 17 judgment of a state court only on the ground that the custody is in 18 violation of the Constitution, laws, or treaties of the United 19 States. Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. 20 Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam). 21 An answer was filed on behalf of Respondent Matthew Cate, 22 Secretary of the California Department of Corrections and 23 Rehabilitation (CDCR), who was named by Petitioner and who had 24 custody of Petitioner at his institution of confinement. Petitioner 25 thus has named as a respondent a person who had custody of 26 Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of 27 the Rules Governing Section 2254 Cases in the United States District 28 Courts (Habeas Rules). See Stanley v. California Supreme Court, 21 2 1 F.3d 359, 360 (9th Cir. 1994). However, in view of the fact that the Secretary of the CDCR is 2 3 now Jeffrey A. Beard, it is ORDERED that Jeffrey A. Beard, Secretary 4 of the CDCR, is SUBSTITUTED as Respondent pursuant to Fed. R. Civ. 2 5 P. 25. 6 II. Background 7 Petitioner alleges he is serving a seven-year sentence imposed 8 in November 2011 in the FCSC for what Petitioner describes as “DUI9 second strike.” (Petn., doc. 1, 1.) Petitioner appends to the 10 petition documents chronicling his unsuccessful attempt to appeal 11 his conviction after the trial court denied his request for a 12 certificate of probable cause, a document that was required for 13 Petitioner to proceed with an appeal following a guilty plea. 14 Attached to his petition is a copy of a petition for writ of habeas 15 corpus that petitioner filed in the California Supreme Court (CSC). 3 16 The petition was denied summarily on June 27, 2012. 17 18 19 20 2 Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer’s successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution. 21 vThe Court takes judicial notice of the identity of the secretary from the official website of the California Department of Corrections and Rehabilitation The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). 22 (CDCR), http://www.cdcr.ca.gov. 23 24 25 26 27 28 3 The Court takes judicial notice of the CSC’s summary denial of Petitioner’s state habeas petition. See White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official website of the California state courts is www.courts.ca.gov. 3 1 III. Ineffective Assistance of Counsel in Coercing Plea 2 Petitioner alleges he suffered the ineffective assistance of 3 counsel (IAC) in violation of his rights under the Sixth and 4 Fourteenth Amendments because his appointed trial counsel was 5 ineffective in coercing Petitioner to enter a guilty plea pursuant 6 to a bargain for a seven-year sentence. Although counsel advised 7 Petitioner to take the offer to avoid a possible life sentence for a 8 third strike, Petitioner alleges counsel only showed him one strike 9 “on my court papers,” but “I told him I only signed one in 2007.” 10 (Id. at 6.) Petitioner alleges that although he asked counsel to 11 file a Romero motion (i.e., a motion to strike a prior conviction 12 pursuant to state law), counsel failed to do so, and he said that if 13 he did file such a motion, the plea offer was off, and the 14 prosecutor “was filing for three strikes.” (Id.) Both counsel and 15 the trial court failed to show Petitioner court papers showing 16 whether he had one or two strikes, even though he asked them to do 17 so. (Id.) 18 Petitioner states in an unverified document that if he had not 19 been advised to take the deal, the maximum sentence he would have 20 faced was the seven years he received; he would have insisted on a 21 Romero motion being made to strike a prior, and if the offer then 22 had still been seven years, he would have gone to trial. He admits 23 that he was guilty of the substantive offense and that he deserved 24 to serve prison time for the prior conviction. 25 A. (Trav., doc. 14, 4.) Legal Standards 26 Title 28 U.S.C. § 2254 provides in pertinent part: 27 (d) An application for a writ of habeas corpus on 28 4 1 2 3 4 5 6 7 8 9 10 11 12 13 behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. 14 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 15 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 16 412 (2000). 17 A state court’s decision contravenes clearly established 18 Supreme Court precedent if it reaches a legal conclusion opposite 19 20 to, or substantially different from, the Supreme Court's or 21 concludes differently on a materially indistinguishable set of 22 facts. 23 24 25 26 Williams v. Taylor, 529 U.S. at 405-06. A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or 27 fails to extend a clearly established legal principle to a new 28 context in an objectively unreasonable manner. 5 Hernandez v. Small, 1 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. 2 An application of clearly established federal law is unreasonable 3 4 5 6 7 only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410. A state court’s determination that a claim lacks merit 8 precludes federal habeas relief as long as fairminded jurists could 9 disagree on the correctness of the state court’s decision. 10 11 12 13 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court’s conclusions unreasonable. Id. To obtain federal habeas relief, a 14 state prisoner must show that the state court’s ruling on a claim 15 was “so lacking in justification that there was an error well 16 understood and comprehended in existing law beyond any possibility 17 for fairminded disagreement.” Id. at 786-87. The § 2254(d) 18 standards are “highly deferential standard[s] for evaluating state19 20 court rulings” which require that state court decisions be given the 21 benefit of the doubt, and the Petitioner bear the burden of proof. 22 Cullen v. Pinholster, 131 S.Ct. at 1398. 23 24 25 26 27 Habeas relief is also not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012). In assessing under section 2254(d)(1) whether the state court’s 28 legal conclusion was contrary to or an unreasonable application of 6 1 federal law, “review... is limited to the record that was before the 2 state court that adjudicated the claim on the merits.” 3 4 5 6 Pinholster, 131 S.Ct. at 1398. Cullen v. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding 7 brought by a person in custody pursuant to a judgment of a state 8 court, a determination of a factual issue made by a state court 9 shall be presumed to be correct. 10 11 12 13 The petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision on the merits based on a factual determination will not be overturned on factual grounds 14 unless it was objectively unreasonable in light of the evidence 15 presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 16 322, 340 (2003). 17 The law governing claims concerning ineffective assistance of 18 counsel is clearly established for the purposes of the AEDPA 19 deference standard set forth in 28 U.S.C. ' 2254(d). Premo v. 20 Moore, B U.S. B, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151 21 F.3d 1226, 1229 n.2 (9th Cir. 1998). To demonstrate ineffective 22 assistance of counsel in violation of the Sixth and Fourteenth 23 Amendments, a convicted defendant must show that 1) counsel’s 24 representation fell below an objective standard of reasonableness 25 under prevailing professional norms in light of all the 26 circumstances of the particular case; and 2) unless prejudice is 27 presumed, it is reasonably probable that, but for counsel’s errors, 28 the result of the proceeding would have been different. Strickland 7 1 v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 2 344, 346 (9th Cir. 1994). A petitioner must identify the acts or 3 omissions of counsel that are alleged to have been deficient. 4 Strickland, 466 U.S. at 690. 5 In determining whether counsel=s conduct was deficient, a court 6 should consider the overall performance of counsel from the 7 perspective of counsel at the time of the representation. 8 Strickland, 466 U.S. at 689. There is a strong presumption that 9 counsel=s conduct was adequate and within the exercise of reasonable 10 professional judgment and the wide range of reasonable professional 11 assistance. 12 Strickland, 466 U.S. at 688-90. Establishing that a state court's application of the Strickland 13 standard was unreasonable under § 2254(d) is all the more difficult. 14 The standards created by Strickland and § 2254(d) are both highly 15 deferential. Id., at 689 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 16 333, n.7 (1997). 17 deferential. When the two apply together, review is doubly Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The 18 Strickland standard is a general one, so the range of reasonable 19 applications is substantial. Id. When § 2254(d) applies, the 20 question is not whether counsel's actions were reasonable; the 21 question is whether there is any reasonable argument that counsel 22 satisfied Strickland's deferential standard. Premo v. Moore, 131 23 S.Ct. at 739-40. 24 Here, with respect to a challenge to a guilty plea, if a 25 prisoner pleads guilty on the advice of counsel, the prisoner must 26 demonstrate that the advice was not within the range of competence 27 demanded of attorneys in criminal cases. 28 U.S. 258, 266-67 (1973). Tollett v. Henderson, 411 A guilty plea represents a break in the 8 1 chain of events which has preceded it in the criminal process. When 2 a criminal defendant has admitted in open court that he is in fact 3 guilty of the offense with which he is charged, he may not raise 4 independent claims relating to the deprivation of constitutional 5 rights that occurred before the entry of the guilty plea; he may 6 only attack the voluntary and intelligent character of the guilty 7 plea by showing that the advice he received from counsel was not 8 within the range of reasonable competence. Tollett v. Henderson, 9 411 U.S. at 267. 10 To demonstrate ineffective assistance of counsel in the context 11 of a challenge to a guilty plea, a habeas petitioner must show both 12 that counsel's advice fell below an objective standard of 13 reasonableness as well as a “reasonable probability” that, but for 14 counsel's errors, the petitioner would not have pleaded guilty and 15 would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 16 52, 58–59 (1985) (the two-part test of Strickland v. Washington 17 applies to challenges to guilty pleas based on the ineffective 18 assistance of counsel); Missouri v. Frye, – U.S. – , 132 S.Ct. 1399, 19 1405 (2012) (reaffirming that Hill is properly applied to claims of 20 ineffective assistance of counsel in the context of acceptance of a 21 plea bargain); Padilla v. Kentucky, – U.S. – , 130 S.Ct. 1473, 1485 22 (2010) (to obtain relief on this type of claim, a petitioner must 23 convince the court that a decision to reject the plea bargain would 24 have been rational under the circumstances). 25 26 B. Analysis Petitioner does not allege he was ignorant of either his 27 constitutional rights or the substantive law relating to his 28 commitment offense; he readily admits that he is guilty of the 9 1 substantive offense and that he deserves prison time for his prior 2 conviction. (Doc. 14, 5.) Petitioner’s sole challenge is to the 3 advice received regarding the sentence imposed pursuant to the 4 bargain. 5 Petitioner alleges in a conclusional fashion that he had only 6 one prior strike, he only signed one, and counsel did not show him 7 any paper work that proved that he had sustained two prior strikes. 8 (Petn., doc. 1, 6; doc. 14, 4 [unsworn statement in the traverse].) 9 He alleges that both the prosecutor and defense counsel stated that 10 he had two prior convictions (doc. 1, petn. filed in CSC at 3); 11 however, he does not set forth the nature of any prior conviction or 12 any other factual detail regarding his criminal history. Likewise, 13 if he is contending that there was a basis for striking a prior 14 conviction to reduce his overall sentence, he has failed to specify 15 any facts warranting a motion to strike a prior conviction or even 16 suggesting that such a motion would have been successful. 17 Petitioner alleges that counsel only spoke to him two or three 18 minutes before each court appearance and did nothing to obtain a 19 lower sentence for Petitioner. (Doc. 1, petn. filed in CSC at 4.) 20 Defense counsel has a duty to make a reasonable investigation or to 21 make a reasonable decision that makes a particular investigation 22 unnecessary. Strickland, 466 U.S. at 691. A failure to investigate 23 must be reasonable in light of all the circumstances. Id. What 24 counsel knows may also be a critical component in determining the 25 reasonableness of a failure to investigate. In this regard, the 26 Court in Strickland stated the following: 27 28 The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. Strickland v. Washington, 466 U.S. at 691. Here, Petitioner has not detailed the charges filed against him, the conduct that was the basis of the charges, his criminal history, facts indicating the legal sufficiency of any of his prior convictions or other adjudications to warrant the sentence actually imposed or a different sentence, or the precise terms of the plea bargain which Petitioner apparently accepted. These are all matters that are within Petitioner’s personal knowledge. The record indicates at best that there was a disagreement or misunderstanding between Petitioner and the other participants in the criminal proceedings as to the nature or legal effect of prior adjudications, but not that counsel gave incorrect advice. Although Petitioner asserts in an unsworn document that he would have gone to trial had he received correct advice, he has not set forth any basis for concluding that the advice to take the plea was, under all the circumstances, objectively unreasonable and without the range of reasonable competence. Petitioner has not shown that he could have 11 1 avoided conviction or a seven-year sentence. Indeed, he has 2 admitted his guilt and that he deserves to serve time for his prior 3 conviction. The state court could have reasonably concluded that 4 Petitioner had not shown substandard advice or any basis for an 5 inference of prejudice. 6 Accordingly, it will be recommended that Petitioner’s IAC claim 7 be denied. 8 IV. Excessive Sentence 9 Petitioner alleges that his sentence of seven years, consisting 10 of the upper term of three years doubled to six because of a “prior 11 strike” with an additional year for a “prison prior,” was excessive 12 because he was coerced to agree to it when it was not certain that 13 Petitioner even had two prior “strike” convictions, and because the 14 restitution ordered was excessive. (Pet., doc. 1, 8.) He alleges 15 that at his first court appearance, he was offered thirty-two months 16 and a second strike, and three months later he was looking at seven 17 years and a third strike when they were not even sure he had two 18 strikes. 19 (Id.) With respect to restitution, Petitioner alleges only that he 20 was ordered to pay $3,000 because he was on parole, whereas others 21 were charged only $200.00. 22 (Id.) With respect to the component of the sentence relating to 23 Petitioner’s time in custody, he does not appear to argue that his 24 25 26 27 sentence exceeded the time to which he was properly exposed under state law. proceeding. Such a claim would not warrant relief in this A claim alleging misapplication of state sentencing law 28 involves a question of state law which is not cognizable in a 12 1 proceeding pursuant to 28 U.S.C. § 2254. See Lewis v. Jeffers, 497 2 U.S. 764, 780 (1990) (rejecting a claim that a state court 3 4 5 6 misapplied state statutes concerning aggravating circumstances on the ground that federal habeas corpus relief does not lie for errors of state law); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) 7 (concluding that claims alleging only that the trial court abused 8 its discretion in selecting consecutive sentences and erred in 9 failing to state reasons for choosing consecutive terms are not 10 11 12 13 cognizable); Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir. 1989) (concluding that a claim concerning whether a prior conviction qualified as a sentence enhancement under state law was not 14 cognizable). Petitioner has not shown that the challenged aspects 15 of his sentence violated federal law. 16 17 To the extent that Petitioner may be challenging his seven-year sentence as disproportionate and excessive, Petitioner has not 18 19 alleged facts that would entitle him to relief. A criminal sentence 20 that is “grossly disproportionate” to the crime for which a 21 defendant is convicted may violate the Eighth Amendment. Lockyer v. 22 Andrade, 538 U.S. 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 23 24 25 26 1001 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271 (1980). Outside of the capital punishment context, the Eighth Amendment prohibits only sentences that are extreme and 27 grossly disproportionate to the crime. United States v. Bland, 961 28 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 13 1 U.S. 957, 1001, (1991) (Kennedy, J., concurring)). Such instances 2 are “exceedingly rare” and occur in only “extreme” cases. 3 4 5 6 v. Andrade, 538 U.S. at 72 73; Rummel, 445 U.S. at 272. Lockyer So long as a sentence does not exceed statutory maximums, it will not be considered cruel and unusual punishment under the Eighth Amendment. 7 See United States v. Mejia Mesa, 153 F.3d 925, 930 (9th Cir. 1998); 8 United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990). 9 10 11 12 13 The Eighth Amendment does not disturb the authority of a state to protect the public by adopting a sentencing scheme that imposes longer sentences on recidivists who have suffered a serious prior felony conviction. Ewing v. California, 538 U.S. 11, 25 (2003) 14 (upholding a sentence of twenty-five years to life for a recidivist 15 convicted of grand theft); Lockyer v. Andrade, 538 U.S. 63, 66-67, 16 73-76 (2003) (upholding two consecutive terms of twenty-five years 17 to life and denying habeas relief to an offender convicted of theft 18 of videotapes worth approximately $150 with prior offenses that 19 20 included first-degree burglary, transportation of marijuana, and 21 escape from prison); Rummel, 445 U.S. at 284 85 (upholding a 22 sentence of life with the possibility of parole for a recidivist 23 24 25 26 convicted of fraudulently using a credit card for $80, passing a forged check for $28.36, and obtaining $120.75 under false pretenses); see Taylor v. Lewis, 460 F.3d 1093, 1101–02 (9th Cir. 27 2006) (upholding a sentence of twenty-five years to life for 28 possession of .036 grams of cocaine base where the petitioner had 14 1 served multiple prior prison terms with prior convictions of 2 offenses that involved violence and crimes against the person). 3 4 5 6 Likewise, the Court has affirmed severe sentences for controlled substance violations. See Harmelin v. Michigan, 501 U.S. at 962-64 (1990) (upholding a sentence of life without the possibility of 7 parole for a defendant convicted of possessing more than 650 grams 8 of cocaine, although it was his first felony offense). 9 10 11 12 13 Here, Petitioner has not set forth any facts regarding the substance and circumstances of his commitment offense, the social harm resulting from his criminal conduct, and Petitioner’s criminal history. In view of not only the limited legal basis for a 14 challenge to the sentence, but also the absence of any pertinent 15 factual detail, there is no basis for the Court to conclude that 16 Petitioner’s seven-year sentence was disproportionate or excessive. 17 To the extent Petitioner raises a claim concerning his 18 restitution, he appears to be arguing about the application or 19 20 interpretation of state law made by the state court. Federal habeas 21 relief is not available to retry a state issue that does not rise to 22 the level of a federal constitutional violation. 23 24 25 26 Wilson v. Corcoran, 131 S.Ct. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. 27 616, 623 (9th Cir. 2002). Souch v. Schaivo, 289 F.3d The Court accepts a state court's 28 interpretation of state law. Langford v. Day, 110 F.3d 1180, 1389 15 1 (9th Cir. 1996). 2 3 4 5 6 Petitioner has also failed to state any factual basis for a finding that the amount of restitution he was ordered to pay violated any constitutional right because unspecified others had been ordered to pay less. A petitioner may establish an equal 7 protection claim by showing that he was intentionally discriminated 8 against based on his membership in a protected class. 9 City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 10 11 12 13 See, Lee v. A petitioner may also establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational basis for the difference in 14 treatment. See, Village of Willowbrook v. Olech, 528 U.S. 562, 564 15 (2000) (per curiam); Engquist v. Oregon Department of Agriculture, 16 553 U.S. 591, 601-02 (2008). 17 Here, Petitioner has not alleged facts showing that he was the 18 object of any intentional discrimination or that he was similarly 19 20 situated with the others who allegedly were ordered to pay less 21 restitution. Petitioner has not shown any basis for relief with 22 respect to the amount of restitution ordered. 23 24 25 26 27 28 Accordingly, it will be recommended that the Court deny Petitioner’s claim that his sentence was excessive. V. Certificate of Appealability Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals 16 1 from the final order in a habeas proceeding in which the detention 2 complained of arises out of process issued by a state court. 28 3 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 4 (2003). A district court must issue or deny a certificate of 5 appealability when it enters a final order adverse to the applicant. 6 Habeas Rule 11(a). 7 A certificate of appealability may issue only if the applicant 8 makes a substantial showing of the denial of a constitutional right. 9 ' 2253(c)(2). Under this standard, a petitioner must show that 10 reasonable jurists could debate whether the petition should have 11 been resolved in a different manner or that the issues presented 12 were adequate to deserve encouragement to proceed further. Miller- 13 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 14 473, 484 (2000)). A certificate should issue if the Petitioner 15 shows that jurists of reason would find it debatable whether: (1) 16 the petition states a valid claim of the denial of a constitutional 17 right, and (2) the district court was correct in any procedural 18 ruling. 19 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 20 claims in the habeas petition, generally assesses their merits, and 21 determines whether the resolution was debatable among jurists of 22 reason or wrong. Id. An applicant must show more than an absence 23 of frivolity or the existence of mere good faith; however, the 24 applicant need not show that the appeal will succeed. Miller-El v. 25 Cockrell, 537 U.S. at 338. 26 Here, it does not appear that reasonable jurists could debate 27 whether the petition should have been resolved in a different 28 manner. Petitioner has not made a substantial showing of the denial 17 1 of a constitutional right. Accordingly, it will be recommended that 2 the Court decline to issue a certificate of appealability. 3 VI. Recommendations 4 Based on the foregoing, it is RECOMMENDED that: 5 1) The petition for writ of habeas corpus be DENIED; and 6 2) Judgment be ENTERED for Respondent; and 7 3) The Court DECLINE to issue a certificate of appealability. 8 These findings and recommendations are submitted to the United 9 States District Court Judge assigned to the case, pursuant to the 10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern 12 District of California. Within thirty (30) days after being served 13 with a copy, any party may file written objections with the Court 14 and serve a copy on all parties. Such a document should be 15 captioned AObjections to Magistrate Judge=s Findings and 16 Recommendations.@ Replies to the objections shall be served and 17 filed within fourteen (14) days (plus three (3) days if served by 18 mail) after service of the objections. The Court will then review 19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 20 The parties are advised that failure to file objections within the 21 specified time may result in the waiver of rights on appeal. 22 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 23 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 IT IS SO ORDERED. 26 27 Dated: May 26, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 18
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