(HC) Embry v. Johnson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONTY EMBRY, No. 1:21-cv-00082-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITIONER’S MOTION FOR A STAY, DISMISSING PETITION FOR WRIT OF 14 R. JOHNSON, Warden of CSP-LAC, HABEAS CORPUS, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR 15 Respondent. PURPOSE OF CLOSING CASE AND THEN ENTER JUDGMENT AND CLOSE CASE 16 AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 17 (Doc. Nos. 1, 3, and 10) 18 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2254. His petition includes five claims for federal habeas 22 relief that encompass alleged prosecutorial misconduct, ineffective assistance of counsel, and 23 errors in jury instructions in connection with his underlying criminal conviction in state court, 24 among other issues. On January 21, 2021, petitioner filed a motion contemporaneously with his 25 petition requesting that the court stay this petition and hold it in abeyance so that he may return to 26 state court to exhaust certain unexhausted claims. 27 On March 29, 2021, the magistrate judge assigned to the case issued findings and 28 recommendations recommending that the pending motion for a stay and abeyance be denied and 1 that the petition be dismissed. (Doc. No. 10.) The magistrate judge based that recommendation 2 on the fact that appellate proceedings in petitioner’s case are ongoing before the state courts. (Id. 3 at 3–4.) In this regard, in 2019, petitioner’s underlying criminal case was remanded for 4 resentencing by the California Court of Appeal for the Fifth Appellate District; however, after the 5 trial court reimposed the same sentence, petitioner appealed again from his judgment of 6 conviction and sentence. (Id. at 2.) That appeal is still pending. (Id.) 7 The findings and recommendations were served upon all parties and contained notice that 8 any objections were to be filed within twenty-one days from the date of service of that order. On 9 April 19, 2021, petitioner filed objections to the magistrate judge’s findings and 10 recommendations. (Doc. No. 11.) Therein, petitioner contends that the Younger abstention 11 doctrine need not be applied to his case because the sentencing issues on appeal are a matter of 12 state law and do not affect his federal habeas claims. (Id. at 2.) Petitioner also argues that the 13 court should grant his motion for a stay and hold his petition in abeyance because his pro se status 14 in his state and federal proceedings constitutes “good cause” under Dixon v. Baker, 847 F.3d 714 15 (9th Cir. 2017). 16 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 17 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 18 objections, the court concludes that the magistrate judge’s findings and recommendations are 19 supported by the record and proper analysis. Petitioner’s state court judgment is not yet final. 20 See Burton v. Stewart, 549 U.S. 147, 156 (2007) (“Final judgment in a criminal case means 21 sentence. The sentence is the judgment.”) (quoting Berman v. United States, 302 U.S. 211, 212 22 (1937). 23 In addition, the court declines to issue a certificate of appealability. A state prisoner 24 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 25 his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 26 v. Cockrell, 537 U.S. 322, 335-336 (2003). If a court denies a petitioner’s petition, the court may 27 only issue a certificate of appealability when a petitioner makes a substantial showing of the 28 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 1 | petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 2 | that) the petition should have been resolved in a different manner or that the issues presented 3 | were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 4 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 5 In the present case, the court finds that petitioner has not made the required substantial 6 | showing of the denial of a constitutional right to justify the issuance of a certificate of 7 | appealability. Reasonable jurists would not find the court’s determination that the pending 8 | petition should be dismissed in light of the ongoing state appellate proceedings to be debatable, 9 | wrong, or deserving of encouragement to proceed further. Thus, the court DECLINES to issue a 10 | certificate of appealability. 11 Accordingly, the court orders as follows: 12 1. The findings and recommendations, filed March 29, 2021 (Doc. No. 10), are 13 ADOPTED IN FULL; 14 2. Petitioner’s motion for a stay (Doc. No. 3) is DENIED; 15 3. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 16 4. The clerk of court is DIRECTED to assign a district judge to this case for the 17 purpose of closing the case and then to ENTER JUDGMENT and close the case; 18 and, 19 5. The court DECLINES to issue a certificate of appealability. 20 | IT IS SO ORDERED. me □ | Dated: _May 20, 2021 Yel A Yaad 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28