(HC) Wallace v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WALLACE, No. 2:19-cv-02224-TLN-EFB 12 Petitioner, 13 v. ORDER 14 GASTELO, 15 Respondent. 16 17 Petitioner George Wallace (“Petitioner”), a state prisoner proceeding pro se, has filed a 18 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 13, 2020, the magistrate judge filed findings and recommendations which were 21 served on Petitioner and which contained notice to Petitioner that any objections to the findings 22 and recommendations were to be filed within fourteen days. (ECF No. 7.) Petitioner filed 23 objections to the findings and recommendations. (ECF No. 11.) 24 This Court reviews de novo those portions of the proposed findings of fact to which 25 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 26 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 27 to any portion of the proposed findings of fact to which no objection has been made, the Court 28 assumes its correctness and decides the motions on the applicable law. See Orand v. United 1 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 2 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 3 Having carefully reviewed the entire file under the applicable legal standards, the Court finds the 4 Findings and Recommendations to be supported by the record and by the magistrate judge’s 5 analysis. 6 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 7 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 8 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 9 Where the petition is denied on the merits, a certificate of appealability may issue under 28 10 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 11 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 12 appealability indicating which issues satisfy the required showing or must state the reasons why 13 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 14 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 15 jurists of reason would find it debatable whether the district court was correct in its procedural 16 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 17 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 18 2000) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)). 19 Here, the Petition is dismissed on procedural grounds. In order to be granted review of a 20 successive application, Petitioner must show that he falls under the “actual innocence” exception. 21 In order to do this, Petitioner must persuade the “district court that, in light of the new evidence, 22 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” 23 Schlup v. Delo, 513 U.S. 298, 329 (1995). In his application, Petitioner points to various items 24 and interpretations of evidence he claims were not presented at trial. This evidence does not rise 25 to the high threshold of convincing the Court that a reasonable juror would not have returned the 26 guilty verdict. Further, the Court finds that jurists of reason would not find it debatable whether 27 this decision on procedural grounds was correct. Morris, 229 F.3d at 780. Therefore, Petitioner 28 cannot meet the first element for the grant of a certificate of appealability. The Court therefore 1 declines to issue a certificate of appealability. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The Findings and Recommendations filed April 13, 2020 (ECF No. 7), are adopted in 4 full; 5 2. This action is DISMISSED for lack of jurisdiction; 6 3. All outstanding motions are DENIED as moot; 7 4. The Clerk is directed to close the case; and 8 5. The Court declines to issue a certificate of appealability. 9 IT IS SO ORDERED. 10 DATED: July 6, 2020 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28