(HC) Delacruz v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO DELACRUZ, No. 1:19-cv-00850-NONE-JLT (HC) 12 Petitioner, ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK 13 v. OF COURT TO ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE 14 STU SHERMAN, Warden, CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. Nos. 16, 20) 16 17 Petitioner Gustavo Delacruz is a state prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant federal habeas 19 petition was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 20 and Local Rule 302. After a preliminary review of petitioner’s second amended petition under 21 Rule 4 of the Rules Governing Section 2254, the assigned magistrate judge found that petitioner’s 22 ineffective assistance of counsel claim had not been exhausted in state court. (Doc. No. 9 at 3.) 23 Accordingly, the magistrate judge issued an order to show cause why the habeas petition should 24 not be dismissed due to petitioner’s failure to exhaust his claims in state court. (Id.) Petitioner 25 responded to the OSC on December 9, 2019. (Doc. No. 10.) Respondent then filed a motion to 26 dismiss on March 25, 2020, arguing that, in addition to the ineffective-of-counsel claim, 27 petitioner’s other claims in which he challenged his judgment of conviction on the grounds that 28 the state trial court had erred by improperly admitting evidence and violating his privilege against 1 self-incrimination at trial were also not exhausted in state court either. (Doc. No. 16 at 2, 4–5.) 2 Petitioner opposed the motion to dismiss, and respondent replied thereto. (Doc. Nos. 18-19.) On 3 May 12, 2020, the magistrate judge issued findings and recommendations recommending that the 4 pending federal habeas petition be dismissed due to petitioner’s failure to exhaust his claims by 5 first presenting them to the state’s highest court. (Doc. No. 20.) Petitioner filed his objections to 6 the findings and recommendations on May 22, 2020. (Doc. No. 21.) 7 Pursuant to 28 U.S.C. § 636 (b)(1)(C), the undersigned has reviewed this case de novo and 8 finds that the magistrate judge’s findings and recommendations are supported by the record and 9 proper analysis. The court also finds that petitioner’s objections fail to meaningfully address his 10 obligation to first exhaust his claims in state court. Accordingly, the undersigned will adopt the 11 pending findings and recommendations in full. 12 The court must now turn to whether a certificate of appealability should be issued. A 13 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 14 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 15 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 16 appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 17 petition should have been resolved in a different manner or that the issues presented were 18 ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 19 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 20 court finds that reasonable jurists would not find the court’s determination that the petition should 21 be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 22 Therefore, the court declines to issue a certificate of appealability. 23 Accordingly, the court ORDERS as follows: 24 1. The findings and recommendations (Doc. No. 20), filed May 12, 2020, are ADOPTED in 25 full; 26 2. Respondent’s motion to dismiss (Doc. No. 16) is GRANTED; 27 3. The second amended petition for writ of habeas corpus (Doc. No. 8) is DISMISSED; 28 ///// wOoOe 4:40 MARE VRP MVMVUPTOCTIL Gor POM Ae OY VV VI 1 4. The Clerk of Court is DIRECTED to close this case; and 2 5. The court DECLINES to issue a certificate of appealability. 3 | ITIS SO ORDERED. 4 D2ADA Dated: _ October 5, 2020 AH LN Une 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