(HC) Bunch v. Sammules, No. 2:2021cv01209 - Document 28 (E.D. Cal. 2023)

Court Description: ORDER signed by District Judge Dale A. Drozd on 12/15/2023 ADOPTING 23 Findings and Recommendations in full and DENYING 1 Petition of Habeas Corpus. The court DECLINES to issues a certificate of appealability. CASE CLOSED. (Clemente Licea, O)

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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 JOHN ANTHONY BUNCH, 12 Petitioner, 13 14 15 v. D. SAMUELS, No. 2:21-cv-01209-DAD-KJN (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PETITION FOR HABEAS RELIEF (Doc. Nos. 1, 23) Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2017 convictions for murder during the 19 special circumstance of an attempted robbery and possession of a firearm by a felon which were 20 entered in the Sacramento County Superior Court. In his petition for federal habeas relief, 21 petitioner asserts the following claims: (1) there was insufficient evidence to support his murder 22 conviction; (2) there was insufficient evidence to support his conviction for the firearm 23 possession offense; (3) the trial court violated his right to due process in denying his motion 24 brought pursuant to People v. Marsden, 2 Cal. 3d 118 (1970); and (4) prosecutorial misconduct. 25 (Doc. No. 1 at 4–5.) The matter was referred to a United States Magistrate Judge pursuant to 28 26 U.S.C. § 636(b)(1)(B) and Local Rule 302. 27 28 On May 25, 2023, the assigned magistrate judge issued findings and recommendations recommending that the pending petition for federal habeas relief be denied. (Doc. No. 23.) 1 1 Specifically, the findings and recommendations found as to petitioner’s insufficiency of the 2 evidence claims, that the state court had reasonably rejected those claims (as to the sufficiency of 3 the evidence regarding the murder, the felony murder special circumstance and the possession of 4 a firearm charge) and that the state court’s determination was neither an unreasonable application 5 of clearly established federal law or based on an unreasonable application of the facts. (Id. at 9– 6 17.) In addition, the magistrate judge concluded that the state court’s rejection of petitioner’s 7 claim that the state court had erred in denying his post-trial Marsden motion, as well as its ruling 8 that petitioner had failed to make a showing of prejudice in support of any claim that his 9 counsel’s performance had been deficient, was not objectively unreasonable. (Id. at 17–23.) 10 Finally, the findings and recommendations concluded that the state court’s rejection of 11 petitioner’s claim that the prosecutor had in three instances engaged in prosecutorial misconduct 12 during closing argument was not contrary to, or an unreasonable application of, clearly 13 established federal law and was not a determination based on an unreasonable application of the 14 facts. (Id. at 23–28.) Accordingly, it was recommended that the pending petition for federal 15 habeas relief be denied. (Id. at 29.) 16 The findings and recommendations were served on petitioner with notice that any 17 objections thereto were to be filed within fourteen (14) days of the date of their service. (Id. at 18 29.) On June 26, 2023, petitioner requested an extension of time in which to file objections to the 19 pending findings and recommendations until August 10, 2023. (Doc. No. 24.) On June 28, 2023, 20 that request was granted by the magistrate judge. (Doc. No. 25.) On September 21, 2023, after 21 the August 10 deadline for filing objections had passed, petitioner filed another request for 22 extension time to November 20, 2023, to file his objections. (Doc. No. 26.) Despite the untimely 23 nature of his request, on October 5, 2023, the magistrate judge granted it and directed that any 24 objections to the pending findings and recommendations be filed within sixty (60) days, i.e., 25 December 4, 2023. (Doc. No. 27.) Despite having been granted two lengthy extensions of time 26 to do so, no objections to the pending findings and recommendations have been filed with the 27 court by petitioner, and the time for doing so has passed even given a generous application of the 28 mailbox rule. 2 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes 3 that the magistrate judge’s findings and recommendations are supported by the record and proper 4 analysis. Therefore, the findings and recommendations will be adopted and petitioner’s request 5 for federal habeas relief will be denied on the merits. 6 In addition, the court declines to issue a certificate of appealability. A petitioner seeking 7 a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 8 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 9 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court 10 may only issue a certificate of appealability if “jurists of reason could disagree with the district 11 court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the 12 issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. 13 at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required 14 to prove the merits of his case, he must demonstrate “something more than the absence of 15 frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. In the 16 present case, the court concludes that reasonable jurists would not find the court’s determination 17 that the petition should be denied debatable or wrong, or that the issues presented are deserving of 18 encouragement to proceed further. Petitioner has not made the required substantial showing of 19 the denial of a constitutional right. Therefore, the court will decline to issue a certificate of 20 appealability. 21 Accordingly: 22 1. 23 The findings and recommendations issued on May 25, 2023 (Doc. No. 23) are adopted in full; 24 2. 25 ///// 26 ///// 27 ///// 28 ///// The petition for writ of habeas corpus (Doc. No. 1) is denied; 3 1 3. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 2 4. The Clerk of the Court is directed to close this case. 3 IT IS SO ORDERED. 4 5 6 Dated: December 15, 2023 DALE A. DROZD UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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