(HC) Barrera v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN GABRIOLA BARRERA, No. 1:20-cv-00913-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE, DIRECTING 14 v. THE CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR PURPOSE OF 15 CLOSING CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 STU SHERMAN, (Doc. No. 10) 17 Respondent. 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. On July 6, 2020, the assigned magistrate judge 21 issued findings and recommendations recommending that the pending petition be dismissed with 22 prejudice for failure to present a cognizable ground for federal habeas relief. (Doc. No. 10.) 23 Specifically, the findings and recommendations reasoned that petitioner’s sole claim—that the 24 trial court erred in denying his motion to suppress incriminating statements he made during the 25 course of his arrest because there was no probable cause to arrest him—cannot proceed as a 26 federal habeas claim because the state court provided petitioner with a “full and fair opportunity 27 to litigate” his Fourth Amendment concerns. (Id.) The findings and recommendations were 28 served upon all parties and contained notice that any objections were to be filed within twenty- 1 one (21) days from the date of service of that order. On August 3, 2020, petitioner filed 2 objections. (Doc. No. 13.) 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, including petitioner's 5 objections, the court concludes that the findings and recommendations are supported by the 6 record and proper analysis. Petitioner's objections present no grounds for questioning the 7 magistrate judge's analysis.1 8 In addition, the court declines to issue a certificate of appealability. A state prisoner 9 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 10 his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 11 v. Cockrell, 537 U.S. 322, 335-336 (2003). 12 If a court denies a petitioner’s petition, the court may only issue a certificate of 13 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 14 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 15 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 16 been resolved in a different manner or that the issues presented were ‘adequate to deserve 17 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 18 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 19 In the present case, the court finds that petitioner has not made the required substantial 20 showing of the denial of a constitutional right to justify the issuance of a certificate of 21 1 Petitioner’s motion to suppress evidence of the incriminating statements he made to police at 22 the time of his arrest was made in state court on Fourth Amendment grounds. Specifically, he 23 argued that the statements should be suppressed because probable cause for his arrest was lacking. The Supreme Court has held claims that evidence was obtained in violation of the 24 Fourth Amendment are not cognizable on federal habeas as long as the state courts have provided a full and fair opportunity to litigate them at trial or on direct review. Stone v. Powell, 428 U.S. 25 465, 481–82 (1976); Wright v. West, 505 U.S. 277, 293 (1992). Petitioner did not argue that his statements should have been suppressed based on any alleged Fifth Amendment and/or Miranda 26 violation. See Hemphill v. Nelly, No. 3:12-cv-668-RJC, 2013 WL 4495246, at *4-5 (W.D.N.C. 27 Aug. 19, 2013) (finding review of a petitioner’s Fourth Amendment based claim regarding the failure to suppress his statements to be prohibited under Stone, but addressing his Fifth 28 Amendment/Miranda base claim challenging the admission of his statements on the merits). 4 OY VEY EONAR SINR MVOC oe POC er TP OAYt □□ VI 1 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 2 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 3 | proceed further. Thus, the court declines to issue a certificate of appealability. 4 Accordingly, the court orders as follows: 5 1. The findings and recommendations, filed July 6, 2020 (Doc. No. 10), are 6 | ADOPTED IN FULL; 7 2. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; 8 3. The Clerk of Court is directed to assign a district judge to this case for the purpose 9 | of closing this case; and, 10 4. The court DECLINES to issue a certificate of appealability. 11 | IT Is SO ORDERED. si am Dated: _ August 21, 2020 PLA L ae 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28