(HC) Spalding v. Hatton, No. 1:2018cv01246 - Document 19 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 18 Findings and Recommendations, DENYING Petition for Writ of Habeas Corpus, DIRECTING Clerk of Court to CLOSE CASE, and DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY signed by District Judge Dale A. Drozd on 4/20/2020. 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 ANTHONY SPALDING, 12 13 14 15 16 Petitioner, v. WARDEN HATTON, No. 1:18-cv-01246-DAD-JDP (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. No. 18) 17 18 Petitioner Anthony Spalding is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 20 to the assigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 21 On March 16, 2020, the magistrate judge issued findings and recommendations 22 recommending that the court deny the pending petition for federal habeas relief with respect to 23 petitioner’s sole claim that the state trial court erred in failing to give the jury at his trial a lesser 24 included offense instruction. (Doc. No. 18.) The magistrate judge concluded that to the extent 25 petitioner’s claim was based on the assertion that such an instruction was required under state 26 law, it was not cognizable on federal habeas review. (Id. at 5.) The magistrate judge also 27 concluded that petitioner had no federal constitutional right to a lesser–included offense 28 instruction and, even if he did, any such error was harmless in this case. (Id.) The findings and 1 1 recommendations were served on petitioner and contained notice that any objections thereto were 2 to be filed within fourteen (14) days of the date of service. (Id. at 6.) To date, petitioner has filed 3 no objections to the findings and recommendations, and the time for doing so has passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 5 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 6 findings and recommendations are supported by the record and proper analysis. 7 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 8 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 9 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal rules governing 10 habeas cases brought by state prisoners require a district court issuing an order denying a habeas 11 petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 12 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made 13 a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 14 certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a 15 district court has rejected the constitutional claims on the merits, the showing required to satisfy § 16 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find 17 the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 18 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing. 19 Accordingly, a certificate of appealability will not be issued. 20 Accordingly, 21 1. The findings and recommendations issued March 16, 2020 (Doc. No. 18) are 22 adopted in full; 23 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 24 3. The court declines to issue a certificate of appealability; and 25 4. The Clerk of Court is directed to close the case. 26 27 28 IT IS SO ORDERED. Dated: April 20, 2020 UNITED STATES DISTRICT JUDGE 2 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 3

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