(HC) Cervantes v. Sullivan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN TONY CERVANTES, No. 1:20-cv-00188-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. § 2254 PETITION 14 W.J. SULLIVAN, Warden, (Doc. Nos. 1, 20) 15 Respondent. 16 17 Petitioner Ruben T. Cervantes is a state prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a 19 Kern County Superior Court jury of two counts of attempted deliberate and premeditated murder 20 in violation of California Penal Code, §§ 664, 189 and one count of infliction of corporal injury to 21 a spouse in violation of Penal Code § 273.5(a). People v. Cervantes, No. F073341, 2018 WL 22 4443814, at *1 (Cal. Ct. App. Sept. 18, 2018); (see also Doc. No. 1 ¶ 6). On appeal, the 23 California Court of Appeal affirmed the judgment of conviction for the most part1 and rejected 24 petitioner’s contention the evidence admitted at his trial was insufficient to sustain the 25 1 With the exception of remanding the case back to the trial court “to consider whether to 26 exercise its discretion pursuant to [Penal Code § 12022.53(h)] to strike appellant’s firearm 27 enhancement and, if appropriate, following the exercise of that discretion, to resentence appellant accordingly,” the conviction was fully affirmed. Cervantes, No. F073341, 2018 WL 4443814, at 28 *6. The partial affirmation is not material to the analysis of the instant § 2254 petition. 1 convictions. Cervantes, No. F073341, 2018 WL 4443814, at *6. The California Supreme Court 2 denied review of petitioner’s claims, including that based upon the alleged insufficiency of the 3 evidence. (Doc. Nos. 17-32, 17-33.) Petitioner then brought this federal habeas petition 4 challenging his state court conviction based upon his assertion of insufficiency of the evidence in 5 violation of his rights under the Due Process Clause. (Doc. No. 1 ¶ 22.) 6 Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas 7 petition was referred to a United States Magistrate Judge. The assigned magistrate judge 8 reviewed the § 2254 petition and found, as a matter of law, that petitioner’s allegations fail to 9 establish that there was an “objectively unreasonable” application of the beyond-reasonable-doubt 10 standard at his trial in state court. (Doc. No. 20 at 9–11) (citing Cavazos v. Smith, 565 U.S. 1, 2 11 (2011)). The magistrate judge therefore recommended that this federal habeas petition be denied. 12 (Id. at 11.) Petitioner has filed objections to the pending findings and recommendations. (Doc. 13 No. 23.) 14 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 15 de novo review of the case. The undersigned finds the pending findings and recommendations to 16 be supported by the record and proper analysis and finds petitioner’s objections to be 17 unpersuasive. The arguments raised by petitioner in his objections have already been thoroughly 18 addressed in the findings and recommendations. Moreover, petitioner has failed to make any 19 showing that viewing “all the evidence” “in the light most favorable to the prosecution” that the 20 jury’s conviction of him was “objectively unreasonable.” Jackson v. Virginia, 443 U.S. 307, 319 21 (1979); see also Cavazos, 565 U.S. at 2. For these reasons, the findings and recommendations 22 will be adopted. 23 In addition, the court concludes that petitioner is not entitled to a certificate of 24 appealability under 28 U.S.C.A. § 2253. “Section 2253(c)(1)(A) provides that unless a circuit 25 justice or judge issues a COA, an appeal may not be taken from ‘the final order in a habeas 26 corpus proceeding in which the detention complained of arises out of process issued by a State 27 court.’” Harbison v. Bell, 556 U.S. 180, 183 (2009). To be entitled to a COA, petitioner must 28 make a substantial showing that “reasonable jurists could debate whether (or, for that matter, 1 | agree that) the petition should have been resolved in a different manner or that the issues 2 || presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 3 | US. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880 (1983)). Neither of the 4 | requirements exists here. The court therefore declines to issue a certificate of appealability. 5 Accordingly, the court ORDERS as follows: 6 1. The findings and recommendations (Doc. No. 20), filed November 10, 2020, are 7 ADOPTED in full; 8 2. The petition for writ of habeas corpus (Doc. No. 1) is DENIED; 9 3. The court DECLINES to issue a certificate of appealability; and 10 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the 11 purpose of closing the case and close this case. 12 | IT IS SO ORDERED. si □ Dated: _ March 15, 2021 J aL Al i 7 a 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28