(HC) Franks v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOM MARK FRANKS, No. 1:18-cv-00385-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 M.E. SPEARMAN, THE PETITION FOR A WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 21) 16 17 18 Petitioner Tom Mark Franks is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 20 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 17, 2019, the assigned magistrate judge issued findings and recommendations, 22 recommending that the pending petition for federal habeas relief be denied and that the court 23 decline to issue a certificate of appealability. (Doc. No. 21.) Specifically, the findings and 24 recommendations analyzed, and rejected on the merits, petitioner’s claims that he received 25 ineffective assistance by his trial counsel. Those findings and recommendations were served 26 upon all parties and contained notice that any objections thereto were to be filed within fourteen 27 (14) days from the date of service of that order. Thereafter, petitioner requested, and the court 28 granted, a thirty (30) day extension of time, until October 9, 2019, to file objections to the 1 findings and recommendations. (Doc. No. 22, 23.) However, no objections have been filed, and 2 the time in which to do so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 findings and recommendations are supported by the record and proper analysis. 6 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 7 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 8 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 9 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 10 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 11 court issue or deny a certificate of appealability when entering a final order adverse to a 12 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 13 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 14 issue a certificate of appealability when “the applicant has made a substantial showing of the 15 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 16 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 17 that) the petition should have been resolved in a different manner or that the issues presented 18 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 19 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 20 In the present case, the court concludes that petitioner has not made the required 21 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 22 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 23 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 24 petitioner is deserving of encouragement to proceed further. Therefore, the court declines to issue 25 a certificate of appealability. 26 ///// 27 ///// 28 ///// 1 Accordingly: 2 1. The findings and recommendations issued on July 17, 2019 (Doc. No. 21) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 5 3. The court declines to issue a certificate of appealability; and 6 4. The Clerk of the Court is directed to close this case. 7 | ITIS SO ORDERED. si am 8 Li. wh F Dated: _ March 3, 2020 wea rE 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28