(HC) Foster v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG LAMAR FOSTER, No. 1:19-cv-00860-DAD-JLT (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 JOSIE GASTELO, Warden of California PETITION FOR WRIT OF HABEAS Men’s Colony, CORPUS 15 Respondent. (Doc. Nos. 1, 13) 16 17 18 Petitioner Craig Lamar Foster is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 20 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 7, 2019, the assigned magistrate judge issued findings and 22 recommendations, recommending the the petition for federal habeas corpus relief be denied on its 23 merits. (Doc. No. 13.) Those findings and recommendations were served upon all parties and 24 contained notice that any objections thereto were to be filed within twenty-one (21) days from the 25 date of service of that order. Thereafter, petitioner requested, and the court granted, a thirty (30) 26 day extension of time to file objections to the findings and recommendations. (Doc. Nos. 14, 15.) 27 On January 13, 2020, petitioner timely filed objections to the findings and recommendations. 28 (Doc. No. 16.) 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 3 objections, the court concludes that the findings and recommendations are supported by the 4 record and proper analysis. 5 Petitioner's objections fail to present any grounds for questioning the magistrate judge's 6 analysis because he merely reiterates therein the arguments raised in his petition for habeas 7 corpus. (Doc. No. 16.) In the pending findings and recommendations, the magistrate judge 8 thoroughly reviewed petitioner’s arguments that: 1) his trial attorney provided ineffective 9 assistance by failing to move for an acquittal of petitioner on the attempted murder charge 10 brought against him; 2) the trial court erred by not providing the jury a more thorough instruction 11 with respect to the law regarding transferred intent; and 3) the trial court erred by giving a 12 supplemental jury instruction on imperfect self-defense. (Doc. No. 13 at 19–35.) After reviewing 13 the relevant legal standards and applying those standards to petitioner’s claims of ineffective 14 counsel, jury instruction and trial court error, the magistrate judge properly concluded that federal 15 habeas corpus relief was unavailable to petitioner in connection with those claims. (Id.) 16 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 17 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 18 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 19 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 20 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 21 court issue or deny a certificate of appealability when entering a final order adverse to a 22 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 23 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 24 issue a certificate of appealability when “the applicant has made a substantial showing of the 25 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 26 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 27 that) the petition should have been resolved in a different manner or that the issues presented 28 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 1 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 2 In the present case, the court concludes that petitioner has not made the required 3 | substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 4 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 5 | entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 6 | petitioner is deserving of encouragement to proceed further. Therefore, the court declines to issue 7 | acertificate of appealability. 8 Accordingly: 9 1. The findings and recommendations issued on November 7, 2019 (Doc. No. 13), is 10 adopted in full; 11 2. The petition for writ of habeas corpus (Doc. No. 1.) is denied with prejudice; 12 3. The court declines to issue a certificate of appealability; and 13 4. The Clerk of the Court is directed to close this case. 14 | IT IS SO ORDERED. si □ Dated: _ March 9, 2020 J aL Al 5 7 a 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28