(HC) Garner v. Cates ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ERWIN GARNER, No. 1:20-cv-01403-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 BRIAN CATES, Acting Warden, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1, 19) 17 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 April 1, 2021, the assigned magistrate judge 21 issued findings and recommendations recommending that the petition be denied on the merits. 22 (Doc. No. 19.) These findings and recommendations were served upon all parties and contained 23 notice that any objections thereto were to be filed within thirty (30) days from the date of service 24 of that order. (Id. at 30–31.) On May 5, 2021, petitioner filed objections to the magistrate 25 judge’s findings and recommendations. (Doc. No. 20.) 26 Petitioner objects to the magistrate judge’s analysis of his sufficiency of the evidence 27 claim, arguing that the magistrate judge improperly relied upon the California Court of Appeal for 28 the Fifth Appellate District’s (“Fifth DCA”) summary of facts, which he contends does not match 1 any witness or victim statements made in court. (See Doc. No. 20 at 1, 3.) Specifically, 2 petitioner asserts that M.Ga.’s testimony does not show that petitioner committed any sexual act 3 against M.Ga. (Doc. No. 20 at 4; see Doc. No. 12-13 at 31–97.) The undersigned is not 4 persuaded by petitioner’s argument because, as noted in the pending findings and 5 recommendations, the Fifth DCA fully recounted M.Ga.’s testimony regarding the various types 6 of sexual acts petitioner committed against her. (See Doc. No. 19 at 8–10, 28, 30.) In light of this 7 and the other evidence cited by the Fifth DCA and magistrate judge, the undersigned agrees that, 8 “after viewing the evidence in the light most favorable to the prosecution,” the Fifth DCA’s 9 conclusion that petitioner raped M.Ga. as charged under California law was not “objectively 10 unreasonable.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Cavazos v. Smith, 565 11 U.S. 1, 2 (2011). 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 13 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 14 objections, the court concludes that the magistrate judge’s findings and recommendations are 15 supported by the record and proper analysis. In addition, the court declines to issue a certificate 16 of appealability. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to 17 appeal a district court’s denial of his petition, and an appeal is only allowed in certain 18 circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). If a court 19 denies a petitioner’s petition, the court may only issue a certificate of appealability when a 20 petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 21 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 22 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 23 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 24 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 25 880, 893 (1983)). 26 In the present case, the court finds that petitioner has not made the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of 28 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 1 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 2 | proceed further. Thus, the court declines to issue a certificate of appealability. 3 Accordingly, the court orders as follows: 4 1. The findings and recommendations, filed April 1, 2021 (Doc. No. 19), are 5 ADOPTED IN FULL; 6 2. The petition for writ of habeas corpus (Doc. No. 1) is DENIED on the merits; 7 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the 8 purpose of closing the case and then to close the case; and 9 4. The court DECLINES to issue a certificate of appealability. 10 | IT IS SO ORDERED. si am | pated: _ July 8, 2021 LL 1 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28