(HC) Ellis v. Biter, No. 1:2017cv01443 - Document 32 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 31 Findings and Recommendations and DENYING Petition for Writ of Habeas Corpus signed by District Judge Dale A. Drozd on 4/27/2020. CASE CLOSED. (Sant Agata, S)

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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 ROBERT LEE ELLIS, 12 Petitioner, 13 v. 14 MARTIN BITER, 15 16 No. 1:17-cv-01443-DAD-JDP (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PETITION FOR WRIT OF HABEAS CORPUS Respondent. (Doc. No. 31) 17 18 19 Petitioner Robert Lee Ellis is a state prisoner proceeding pro se and in forma pauperis 20 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On March 30, 2020, the assigned magistrate judge issued findings and recommendations 23 recommending that the pending petition for federal habeas relief be denied on the merits. (Doc. 24 No. 31.) Specifically, the magistrate judge found that each of the four grounds for federal habeas 25 relief asserted in petitioner’s pending petition—(1) that the trial court violated his constitutional 26 rights when it denied his motion for a new trial due to juror misconduct; (2) that the trial court 27 violated his constitutional rights when it failed to give an imperfect self-defense jury instruction; 28 (3) that the trial court’s supplemental jury instruction was coercive, violating petitioner’s 1 1 constitutional rights; and (4) that the cumulative effect of the trial court errors warranted the 2 granting of relief—all fail on their merits. (Id. at 5–6, 17.) Those findings and recommendations 3 were served on all parties and contained notice that any objections thereto were to be filed within 4 fourteen (14) days from the date of service. (Id. at 17.) No objections have been filed and the 5 time in which to do so has now passed. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 7 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 court finds the findings and recommendations to be supported by the record and proper analysis. 9 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 10 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 11 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 12 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 13 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 14 court issue or deny a certificate of appealability when entering a final order adverse to a 15 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 16 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 17 issue a certificate of appealability when “the applicant has made a substantial showing of the 18 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 19 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 20 that) the petition should have been resolved in a different manner or that the issues presented 21 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 22 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made 23 such a showing. Therefore, the court declines to issue a certificate of appealability. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 2 1 Accordingly, 2 1. 3 The findings and recommendations issued on March 30, 2020 (Doc. No. 31) are adopted in full; 4 2. This petition for writ of habeas corpus (Doc. No. 1) is denied; 5 3. The court declines to issue a certificate of appealability; and 6 4. The Clerk of the Court is directed to close this case. 7 8 IT IS SO ORDERED. Dated: April 27, 2020 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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