(HC) Drake v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GASPAR DRAKE, Case No. 1:18-cv-00523-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION 14 J. GASTELO, (Doc. No. 22) 15 Respondent. 16 17 Petitioner Gaspar Drake, a state prisoner proceeding without counsel in this action, seeks 18 federal habeas corpus relief under 28 U.S.C. § 2254. (Doc. No. 1.) In 2015, petitioner was 19 convicted by a Kings County Superior Court jury of battery on a non-prisoner and obstructing a 20 correctional officer in the performance of his duties. (Doc. No. 16 at 11–16.) Petitioner seeks 21 relief on the ground that at his trial on those charges the testimony of two witnesses necessary to 22 his defense was improperly excluded. (Id. at 24.) This action was referred to a United States 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On March 30, 2020, the assigned magistrate judge issued findings and recommendations, 25 recommending that the pending petition be denied because he had failed to demonstrate that the 26 exclusion of the testimony of the two inmate witnesses at his trial resulted in him being denied his 27 constitutional right to due process. (Doc. No. 22.) On April 24, 2020, petitioner filed objections 28 to the findings and recommendations. (Doc. No. 23.) In accordance with the provisions of 28 1 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this 2 case. Having carefully reviewed the entire file, including petitioner’s objections, the court 3 concludes that the findings and recommendations are supported by the record and proper analysis. 4 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 5 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 6 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 7 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 8 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 9 court issue or deny a certificate of appealability when entering a final order adverse to a 10 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 11 Cir. 1997). If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 12 issue a certificate of appealability when “the applicant has made a substantial showing of the 13 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 14 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 15 that) the petition should have been resolved in a different manner or that the issues presented 16 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 17 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, the court 18 concludes that petitioner has not made the required substantial showing of the denial of a 19 constitutional right to justify the issuance of a certificate of appealability. The court therefore 20 declines to issue a certificate of appealability. 21 Accordingly: 22 1. The findings and recommendations issued on March 30, 2020 (Doc. No. 22) are 23 adopted; 24 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 25 ///// 26 ///// 27 ///// 28 ///// wOow 4:40 □□□ MARE VET MMVII oa POC Vite TOY VM VI 1 3. The court declines to issue a certificate of appealability; and 2 4. The Clerk of Court is directed to assign a district judge to this case for the 3 purposes of closure and to close this case. 4 | IT IS SO ORDERED. a 5 Li. wh F Dated: _ July 30, 2020 Aa oF 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28