(HC) Cisco v. Johnson, No. 2:2020cv02138 - Document 20 (E.D. Cal. 2021)

Court Description: ORDER signed by District Judge Troy L. Nunley on 5/3/2021 GRANTING 18 Request for Leave to File Late Response; ADOPTING 14 Findings and Recommendations in full; GRANTING 12 Motion to Dismiss; and DECLINING to issue the certificate of appealability referenced in 28 U.S.C. §2253. CASE CLOSED. (Coll, A)

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(HC) Cisco v. Johnson Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTIONE TRAYVON CISCO, Petitioner, 12 13 14 15 No. 2:20-cv-02138-TLN-DMC ORDER v. JOHNSON, Respondent. 16 17 Petitioner Antione Trayvon Cisco (“Petitioner”), a state prisoner, brings this Petition for a 18 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 12, 2021, the Magistrate Judge filed findings and recommendations herein 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. (ECF No. 14.) On March 25, 2021, Petitioner filed Objections 23 to the Findings and Recommendations (ECF No. 16), which have been considered by the Court. 24 On April 14, 2012, Respondent filed a Request for Leave to File Late Response to 25 Petitioner’s Objections to Findings and Recommendations. (ECF Nos. 18, 19.) Upon review of 26 Respondent’s request and supporting declaration, and good cause appearing, Respondent’s 27 Request is GRANTED. 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 1 Dockets.Justia.com 1 Court has conducted a de novo review of this case. See McDonnell Douglas Corp. v. Commodore 2 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 3 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Having reviewed the file under the 4 applicable legal standards, the Court finds the Findings and Recommendations to be supported by 5 the record and by the magistrate judge’s analysis. 6 In his Objections, Petitioner argues he is entitled to equitable tolling based on unspecified 7 “circumstances of lack of counsel and the COVID pandemic.” (See generally ECF No. 16.) This 8 argument is unavailing. In addition to this statutory tolling provision, the one-year statute of 9 limitations is also subject to the doctrine of equitable tolling. Smith v. Davis, 953 F.3d 582, 588 10 (9th Cir. 2020) (citing Holland v. Florida, 560 U.S. 631, 634 (2010)). “A petitioner seeking 11 equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his 12 rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented 13 timely filing. Id. (citations omitted). Here, even providing the COVID pandemic constitutes an 14 “extraordinary circumstance,” Petitioner he fails to establish how the pandemic specifically 15 prevented timely filing in his case. Indeed, the statute of limitations began running nearly eight 16 months before the pandemic began, but Petitioner fails to explain how he acted diligently during 17 this time. Therefore, Petitioner’s objections are overruled. 18 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 19 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 20 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 21 Where the petition is denied on the merits, a certificate of appealability may issue under 28 22 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 23 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 24 appealability indicating which issues satisfy the required showing or must state the reasons why 25 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 26 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 27 jurists of reason would find it debatable whether the district court was correct in its procedural 28 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 2 1 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484–85 (2000)). For the reasons set forth in the 3 Findings and Recommendations (ECF No. 14), the Court finds that issuance of a certificate of 4 appealability is not warranted in this case. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Respondent’s Request for Leave to File Late Response to Petitioner’s Objections to 7 8 9 Findings and Recommendations (ECF No. 18) is GRANTED; 2. The Findings and Recommendations filed March 12, 2021 (ECF No. 14), are ADOPTED IN FULL; 10 3. Respondent’s unopposed Motion to Dismiss (ECF No. 12) is GRANTED; 11 4. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 12 2253; and 13 5. The Clerk of the Court is directed to close this case. 14 IT IS SO ORDERED. 15 DATED: May 3, 2021 16 17 Troy L. Nunley United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3

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