(HC) Yocom v. Attorney General ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. YOCOM, No. 1:20-cv-00645-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 14 ATTORNEY GENERAL, PETITION FOR WRIT OF HABEAS CORPUS, DENYING PETITIONER’S 15 Respondent. MISCELLANEOUS MOTIONS, AND DECLINING TO ISSUE A CERTIFICATE OF 16 APPEALABILITY 17 (Doc. No. 18) 18 19 20 Petitioner Michael A. Yocom is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 22 a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On June 5, 2020, the assigned magistrate judge issued the pending findings and 24 recommendations, recommending that the pending petition for federal habeas relief be dismissed 25 because petitioner’s direct appeal of his state court judgment of conviction is still pending before 26 the state appellate court. (Doc. No. 18.) Accordingly, the magistrate judge recommended 27 dismissing the pending petition without prejudice to its refiling, if necessary, after petitioner’s 28 proceedings on direct appeal in the state courts have concluded. (Id. at 2.) On June 22, 24, and 1 25, 2020, petitioner filed objections to the pending findings and recommendations. (Doc. No. 2 21.) Petitioner has also filed various miscellaneous motions seeking appointment of counsel and 3 an evidentiary hearing (see Doc. Nos. 16, 17, 22, 27), and, confusingly, a motion to proceed in 4 forma pauperis (see Doc. No. 26) despite this court having already authorized him to so proceed 5 (see Doc. Nos. 8). 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 7 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 8 objections, the court concludes that the findings and recommendations are supported by the 9 record and by proper analysis 10 In his objections, petitioner contends that he need not wait for the direct appeal of his 11 conviction to conclude before bringing the pending federal habeas petition because “there is no 12 appeal in the State Courts as to []Counts 1 and 5[],” apparently contending that the pending 13 petition challenges those counts, and that only “[]counts[] 2, 3, 4, and 6” are at issue in his direct 14 appeal. (Doc. No. 21 at 1; see also Doc. Nos. 24, 25.) As the pending findings and 15 recommendations correctly note, however, petitioner’s argument in this regard does not mean that 16 he can proceed with his petition prior to the conclusion of his appellate proceedings before the 17 state courts. 18 When, as in the present case, an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the 19 outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been 20 finally settled in the state courts 21 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). Here, petitioner concedes that his 22 appeal of his state criminal conviction is still pending before the state appellate courts. (See Doc. 23 No. 15 at 2.) Petitioner’s objections therefore do not meaningfully dispute the magistrate judge’s 24 finding that the pending petition must be dismissed without prejudice to its refiling after his direct 25 appeal from his judgment of conviction has come to a conclusion. 26 Having concluded that the pending petition must be dismissed, the court also declines to 27 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 28 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. wOoOe AEE VE MMU LO POO VIN eT OY VV 1 | Cockrell, 537 U.S. 322, 335-36 (2003). Ifa court denies a petitioner’s petition, the court may 2 | only issue a certificate of appealability when a petitioner makes a substantial showing of the 3 | denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 4 | relief on procedural grounds without reaching the underlying constitutional claims, the court 5 | should issue a certificate of appealability “if jurists of reason would find it debatable whether the 6 | petition states a valid claim of the denial of a constitutional right and that jurists of reason would 7 | find it debatable whether the district court was correct in its procedural ruling.” Slack v. 8 | McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 9 | would not find the court’s determination that the pending petition must be dismissed to be 10 | debatable or wrong. Thus, the court declines to issue a certificate of appealability. 11 Accordingly, 12 1. The June 5, 2020 findings and recommendations (Doc. No. 18) are adopted in full; 13 2. The petition for writ of habeas corpus (Doc. No. 15) is dismissed without prejudice 14 to its refiling until after petitioner’s direct appeal of his conviction at the state level 15 has concluded; 16 3. The court declines to issue a certificate of appealability; 17 4, Petitioner’s miscellaneous motions (Doc. Nos. 16, 17, 22, 26, 27) are denied as 18 having been rendered moot by the issuance of this order; and 19 5. The Clerk of the Court is directed to close this case. 20 | IT IS SO ORDERED. me □ *T 1) Dated: _ July 1, 2020 Yel A Yaad 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28