(HC) Thomas J. Shadden, Jr. v. Sexton ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS J. SHADDEN, JR., No. 1:20-cv-00604-DAD-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DENYING MOTION FOR 14 MICHAEL SEXTON, APPOINTMENT OF COUNSEL, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 15 Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 6, 7) 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. The matter was referred to a U.S. Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On May 21, 2020, the assigned magistrate judge issued findings and recommendations 23 recommending that the petition be dismissed for lack of jurisdiction. (Doc. No. 6.) Specifically, 24 the magistrate judge found that the pending petition is a second or successive petition and that 25 petitioner has not first obtained leave from the Ninth Circuit Court of Appeals to proceed with 26 such a petition. (Id. at 1–3.) On June 10, 2020, petitioner filed timely objections to the pending 27 findings and recommendations and moved for appointment of counsel. (Doc. No. 7.) 28 ///// 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, court concludes that the findings and recommendations are supported by the record 4 and by proper analysis 5 In his objections, petitioner does not meaningfully dispute the magistrate judge’s finding 6 that the pending petition is a second or successive petition. Instead, petitioner has attached to his 7 objections a January 15, 2020 ruling of the Kern County Superior Court, after an evidentiary 8 hearing was held, denying petitioner’s state habeas petition which was based on a claim of newly 9 discovered evidence. As noted in the pending findings and recommendation, however, a 10 petitioner may file a second or successive petition raising a new claim for federal habeas relief 11 based on new evidence if he meets the requirements set forth in 28 U.S.C. § 2244(b)(2)(B). It is 12 not the district court that decides whether a second or successive petition meets these 13 requirements. Rather, “[b]efore a second or successive application permitted by this section is 14 filed in the district court, the applicant shall move in the appropriate court of appeals for an order 15 authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A) (emphasis 16 added). Because, here, ppetitioner has made no showing that he has obtained prior leave from the 17 Ninth Circuit to file a successive petition, this court lacks jurisdiction to consider his renewed 18 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. Burton v. Stewart, 19 549 U.S. 147, 157 (2007). 20 Having concluded that the pending petition must be dismissed, the court also declines to 21 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 22 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 23 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 24 only issue a certificate of appealability when a petitioner makes a substantial showing of the 25 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 26 relief on procedural grounds without reaching the underlying constitutional claims, the court 27 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 28 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 1 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 2 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that petitioner has not 3 made the required substantial showing of the denial of a constitutional right to justify the issuance 4 of a certificate of appealability. Reasonable jurists would not find the court’s determination that 5 the pending petition is a second or successive petition to be debatable, wrong, or deserving of 6 encouragement to proceed further. Thus, the court declines to issue a certificate of appealability. 7 Finally, the court addresses petitioner’s motion for appointment of counsel. (Doc. No. 7.) 8 “There currently exists no absolute right to appointment of counsel in habeas proceedings.” 9 Henderson v. McDonald, No. 10-cv-02787-JAM-KJN P, 2011 WL 704695, at *1 (E.D. Cal. Feb. 10 18, 2011); see, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 11 258 F.2d 479, 481 (9th Cir. 1958). However, the Criminal Justice Act authorizes the appointment 12 of counsel at any stage of the proceeding for financially eligible persons if “the interests of justice 13 so require.” 18 U.S.C. § 3006A(a)(2)(B). See also Rule 8(c), Rules Governing Section 2254 14 Cases. To determine whether to appoint counsel, the “court must evaluate the likelihood of 15 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 16 of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 17 1983). 18 Upon review of petitioner’s submissions in this action, the court finds that he appears to 19 have a sufficient grasp of his claims and the legal issues involved and that he is able to articulate 20 those claims adequately. The legal issues involved are not complex, and petitioner does not 21 demonstrate a likelihood of success on the merits such that the interests of justice require the 22 appointment of counsel at the present time. 23 Accordingly: 24 1. The findings and recommendation issued on May 21, 2020 (Doc. No. 6) are 25 adopted in full; 26 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 27 3. The court declines to issue a certificate of appealability; 28 ///// wOASS 1. MYUVUETEAEY SND MVEUETIOCTIL OO POR OTe PF AY SF UE tT 1 4. Petitioner’s motion for appointment of counsel (Doc. No. 7) is denied; and 2 5. The Clerk of Court is directed to close this case. 3 | IT IS SO ORDERED. 23 Dated: _ June 18, 2020 Ya 1 £ ae 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28