- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER PALMERO, No. 1:20-cv-00413-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 v. TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 CERTIFICATE OF APPEALABILITY 16 (Doc. No. 30) JIM ROBERTSON, Warden, 17 Respondent. 18 19 20 Petitioner Peter Palmero is a state prisoner proceeding pro se and in forma pauperis with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which challenges his state court 22 conviction for possessing a weapon, specifically a sharp instrument, in a penal institution in 23 violation of California Penal Code § 4502(a). (Doc. No. 1.) This matter was referred to a United 24 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 25 17, 2021, the assigned magistrate judge issued findings and recommendations recommending that 26 the petition be denied on the merits. (Doc. No. 30.) Those findings and recommendations were 27 served upon all parties and contained notice that any objections thereto were to be filed within 28 twenty-one (21) days after service. On March 11, 2021, petitioner filed objections to the findings 1 and recommendations. (Doc. No. 32.) 2 Petitioner objects to the magistrate judge’s analysis of his sufficiency of the evidence 3 claim, arguing that “he denied ownership of the weapon and the evidence failed to establish that 4 the second shoe belonged to him or that he ever possessed it while knowing that it contained a 5 weapon inside.” (Doc. No. 32 at 3.) As noted in the pending findings and recommendations, 6 however, the state appellate court’s determination that there was substantial evidence to support 7 petitioner’s conviction was not unreasonable: 8 At trial, Petitioner admitted the shoe belonged to him. The shoe was also a match for Petitioner’s other shoe in size, make and wear. 9 Petitioner nonetheless contends that the knife was not his, but that another inmate, Derek Sommer, had hidden the knife in his shoe 10 during the incident. The jury disregarded Petitioner’s and Sommer’s testimony as not credible. Sommer was impeached with 16 felony 11 convictions and admitted he was serving a sentence of 140 years. While Sommer testified at trial that he had hidden his knife in 12 Petitioner’s shoe, the jury could conclude from other evidence that Sommer’s trial testimony was false. The appellate court noted that 13 Sommer was located lying prone on the ground next to a blue jacket. On top of the blue jacket was an inmate-manufactured stabbing type 14 weapon, wrapped in latex and housed in a sheath. Following the incident, Sommer advised officers that this knife was his, provided 15 an accurate description of the weapon, and stated he didn’t want anyone else to get in trouble for the weapon he brought to the yard. 16 Also, upon locating the shoe on the yard, Officer Farley remarked, “Well, we know who this shoe belongs to.” Petitioner replied that it 17 was not his. From this contradictory statement, the jury could conclude that Petitioner knew his shoe contained a knife. 18 19 (Doc. No. 30 at 8; see also id. at 2–3, 5–6.) In light of this and the other evidence cited by the 20 state appellate court and the magistrate judge, the undersigned agrees that, “after viewing the 21 evidence in the light most favorable to the prosecution,” the appellate court’s conclusion that 22 substantial evidence supported petitioner’s conviction was not “objectively unreasonable.”1 23 Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011). 24 ///// 25 1 Petitioner also contends that his Miranda rights were violated when the prosecution used his 26 statement denying ownership of the shoe in response to Officer Farley’s remark that, “Well, we 27 know who this shoe belongs to.” (Doc. No. 32 at 11–12.) However, petitioner raised this belated contention for the first time in his traverse and regardless, petitioner’s response to Officer Farley 28 was not made during an interrogation. (See Doc. No. 30 at 9.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 3 objections, the court concludes that the magistrate judge’s findings and recommendations are 4 supported by the record and proper analysis. Petitioner's objections present no grounds for 5 questioning the magistrate judge's analysis. 6 In addition, the court declines to issue a certificate of appealability. A state prisoner 7 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 8 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 9 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a petitioner’s petition, the court 10 may only issue a certificate of appealability when a petitioner makes a substantial showing of the 11 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 12 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 13 that) the petition should have been resolved in a different manner or that the issues presented 14 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 15 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 16 In the present case, the court finds that petitioner has not made the required substantial 17 showing of the denial of a constitutional right to justify the issuance of a certificate of 18 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 19 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 20 proceed further. Thus, the court declines to issue a certificate of appealability. 21 Accordingly, 22 1. The findings and recommendations issued on February 17, 2021, (Doc. No. 30), 23 are adopted in full; 24 2. The petition for writ of habeas corpus is denied with prejudice; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. The Clerk of the Court is directed to assign a district judge to this case for the 2 | purpose of closing the case and then to enter judgment and close the case; and 3 4. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ July 30, 2021 wee TE OO 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:20-cv-00413
Filed Date: 7/30/2021
Precedential Status: Precedential
Modified Date: 6/19/2024