(HC) Hernandez v. Baughman et al, No. 1:2018cv01271 - Document 34 (E.D. Cal. 2019)

Court Description: ORDER ADOPTING 28 Findings and Recommendations; 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, signed by Chief Judge Lawrence J. O'Neill on 12/2/19. CASE CLOSED. (Marrujo, C)

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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 THOMAS HERNANDEZ, 12 Petitioner, 13 14 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 18 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 28) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 15 17 No. 1:18-cv-01271-LJO-JLT (HC) CHRISTIAN PFEIFFER, Warden of Kern Valley State Prison, ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2254. On September 17, 2019, the Magistrate Judge 22 assigned to the case issued Findings and Recommendation to deny the petition on its merits. 23 (Doc. No. 28.) This Findings and Recommendation was served upon all parties and contained 24 notice that any objections were to be filed within twenty-one days from the date of service of that 25 order. On November 8, 2019, Petitioner filed objections to the Magistrate Judge’s Findings and 26 Recommendations. (Doc. No. 32.) 27 In the objections, Petitioner argues that because the federal court is bound by the highest 28 1 1 court of the state in interpreting state law, the Magistrate Judge’s recommendation that this Court 2 find that the Fifth DCA correctly interpreted state law as to provocation is in error. (Doc. 32 at 5- 3 6.) Petitioner additionally contends that the trial court was required to independently instruct the 4 jury on the elements of the offense of murder, including what type of provocation would negate 5 the malice element whether the defense requested such an instruction or not. (Doc. 32 at 6-7.) 6 Petitioner’s arguments relate to the trial court’s instruction on provocation. However, as 7 discussed in the Findings and Recommendations, the claim is not cognizable on federal habeas 8 and should be rejected, and the claim is without merit. (Doc. 28 at 24-25.) 9 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 11 objections, the Court concludes that the Magistrate Judge’s Findings and Recommendation is 12 supported by the record and proper analysis. Petitioner's objections present no grounds for 13 questioning the Magistrate Judge's analysis. 14 In addition, the Court declines to issue a certificate of appealability. A state prisoner 15 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 16 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 17 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 18 appealability is 28 U.S.C. § 2253, which provides as follows: 19 (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. 20 21 22 23 24 25 26 27 28 (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. 2 1 2 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 3 If a court denies a petitioner’s petition, the court may only issue a certificate of 4 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 5 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 6 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 7 been resolved in a different manner or that the issues presented were ‘adequate to deserve 8 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 9 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 10 In the present case, the Court finds that Petitioner has not made the required substantial 11 showing of the denial of a constitutional right to justify the issuance of a certificate of 12 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 13 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 14 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 15 Accordingly, the Court orders as follows: 16 1. 17 The Findings and Recommendations, filed September 17, 2019 (Doc. No. 28), is ADOPTED IN FULL; 18 2. The petition for writ of habeas corpus is DENIED WITH PREJUDICE; 19 3. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and, 20 4. The Court DECLINES to issue a certificate of appealability. 21 This order terminates the action in its entirety. 22 23 24 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ December 2, 2019 UNITED STATES CHIEF DISTRICT JUDGE 25 26 27 28 3

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