(HC) Franco v. Espinoza ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA ANTONIA FRANCO, No. 1:18-cv-00057-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 JANEL ESPINOZA, PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 29) 16 17 18 Petitioner Maria Antonia Franco is a state prisoner proceeding with counsel with a petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a magistrate 20 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 6, 2019, the assigned magistrate judge issued findings and recommendations 22 recommending that the pending petition be denied on the merits. (Doc. No. 29.) Specifically, the 23 magistrate judge found that each of the three grounds for habeas relief asserted in petitioner’s 24 pending petition—(1) the prosecution failed to prove beyond a reasonable doubt that petitioner 25 personally discharged a firearm that caused great bodily injury; (2) the trial court failed to use a 26 pattern instruction that “fully define[d] proximate cause”; and (3) petitioner received ineffective 27 assistance of counsel at trial—fail on their merits. (Id. at 6–20.) The findings and 28 recommendations were served on petitioner and contained notice that any objections thereto were 1 to be filed within ten (10) days after service. (Id. at 20.) After seeking and receiving an 2 extension of time to file objections, petitioner filed objections on November 18, 2019. (Doc. Nos. 3 30, 31, 32.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 6 including petitioner’s objections, the court finds the findings and recommendations to be 7 supported by the record and proper analysis. 8 In her objections, petitioner does not meaningfully dispute the magistrate judge’s finding 9 that each of the three grounds for federal habeas relief she asserts fails on the merits. The 10 pending findings and recommendations lay out the standards of review for each of the three 11 asserted grounds and explains why the pending petition falls short of satisfying those standards 12 for the granting of relief. The objections do not dispute or even address these standards and, 13 instead, offer additional arguments in support of the three grounds for relief asserted by 14 petitioner. (See generally Doc. No. 32.) For example, petitioner asserts that “no fairminded jurist 15 would agree that Franco’s gunshot to Lopez’s left side or flank[] caused any great bodily injury” 16 and that “[t]he record is clear and convincing that it was a graze wound which just nicked the 17 skin” (id. at 4) (internal quotation marks omitted), but does not respond to the magistrate judge’s 18 finding that petitioner failed to show (1) that the state court’s determination that petitioner’s 19 actions were a substantial factor in causing the injuries sustained by the victim was unreasonable 20 or (2) that the state court’s rejection of this claim was contrary to or an unreasonable application 21 of the law (Doc. No. 29 at 10). Petitioner’s objections to the recommended denial of her second 22 and third grounds for federal habeas relief are similarly deficient. For example, even if the court 23 were to accept petitioner’s argument that the jury instruction given at her trial with respect to 24 defining “proximate cause” omitted language requiring “a chronological or temporal requirement 25 to the causation” (Doc. No. 32 at 9), petitioner does not contend that this purported instructional 26 error had a substantial or injurious effect or influence on the jury’s verdict (Doc. No. 29 at 14). 27 And, even if the court accepts petitioner’s assertion that her trial counsel could have pursued 28 other avenues of investigation (Doc. No. 32 at 12), petitioner does not dispute the findings of the 1 | state court and the magistrate judge that she suffered no prejudice as a result of her trial counsel’s 2 | alleged ineffectiveness (Doc. No. 29 at 19). Because petitioner’s objections are unpersuasive and 3 | the analysis set forth in the pending findings and recommendations is sound, the court will adopt 4 | the June 6, 2019 findings and recommendations in full. 5 Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to 6 | appeal a district court’s denial of his petition, and an appeal is only allowed in certain 7 | circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003). Specifically, the federal 8 | rules governing habeas cases brought by state prisoners require a district court issuing an order 9 | denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules 10 | Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the 11 | applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 12 | § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, id. at (c)(3). 13 | “Where a district court has rejected the constitutional claims on the merits, the showing required 14 | to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists 15 | would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 16 | v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing. 17 | Accordingly, a certificate of appealability will not be issued. 18 For the reasons set forth above, 19 1. The June 6, 2019 findings and recommendations (Doc. No. 29) are adopted in full; 20 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 21 3. The Clerk of the Court is directed to close this case; and 22 4. The court declines to issue a certificate of appealability. 23 | IT IS SO ORDERED. me □ Dated: _ January 22, 2020 al, A □□□ 25 UNITED STATES DISTRICT JUDGE 26 27 28