(HC) Reyes-Tornero v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MANUEL REYES-TORNERO, No. 1:18-cv-00445-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. HABEAS PETITION AND DIRECTING THE CLERK OF COURT TO CLOSE CASE, AND 14 M. ELIOT SPEARMAN, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. No. 24) 16 17 Petitioner Jose Manuel Reyes-Tornero, a state prisoner proceeding with counsel, seeks 18 habeas corpus relief under 28 U.S.C. § 2254. After petitioner was convicted of attempted murder, 19 felony assault, and robbery, he petitioned the California Court of Appeal and the California 20 Supreme Court for habeas relief on grounds of ineffective assistance of counsel. (Doc. No. 1 at 21 2–4.) Both courts denied his state habeas petitions. (Id.) Upon its filing, the instant federal 22 habeas petition was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(b)(1)(B) and Local Rule 302. 24 On May 26, 2020, the assigned magistrate judge considered petitioner’s claims that his 25 attorney’s (1) failure to seek redaction of a police interview and (2) failure to object to the 26 prosecution’s closing argument that his pre-arrest silence with the police was indicative of his 27 guilt violated petitioner’s right to effective assistance of counsel. (Id. at 2–3; Doc. No. 24 at 3–6.) 28 ///// 1 Applying the governing standard under the decision in Strickland v. Washington, 466 U.S. 668 2 (1984), the magistrate judge found that defense counsel’s conduct was objectively reasonable and 3 that petitioner had been afforded the effective assistance of counsel. (Doc. No. 24 at 4–6.) The 4 magistrate judge, therefore, recommended that the pending federal habeas petition be denied on 5 its merits. (Id. at 6.) Petitioner filed his objections to those findings and recommendations on 6 May 26, 2020. (Doc. No. 25.) In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) 7 and Local Rule 304, this court has conducted a de novo review of this case and finds the pending 8 findings and recommendations to be supported by the record and proper analysis. 9 Petitioner’s objections fail to meaningfully address the reasoning set forth in the findings 10 and recommendations. (See Doc. No. 25 at 2–5.) In addition, the facts in the two cases cited by 11 petitioner in support of his objections—Wiggins v. Smith, 539 U.S. 510 (2003), and Harrington v. 12 Richter, 562 U.S. 86 (2011)—are not analogous to the facts in his case. (See id. at 2–3.) 13 Accordingly, the court finds petitioner’s objections to be unavailing. 14 Petitioner alternatively requests a certificate of appealability should his habeas petition be 15 denied. (Doc. No. 24 at 5.) A prisoner seeking a writ of habeas corpus has no absolute 16 entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed under 17 limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 18 (2003). Issuing a certificate of appealability is appropriate when “the applicant has made a 19 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial 20 showing exists when petitioner establishes that “reasonable jurists could debate whether (or, for 21 that matter, agree that) the petition should have been resolved in a different manner or that the 22 issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 23 McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In 24 the present case, the court concludes that petitioner has not made such substantial showing to 25 justify the issuance of a certificate of appealability. The court therefore declines to issue a 26 certificate of appealability. 27 ///// 28 ///// wOAOe 4:40 VOUT AEE VE MMU IO VO ETH EN MV VI 1 Accordingly: 2 1. The May 26, 2020 findings and recommendations (Doc. No. 24) are ADOPTED 3 IN FULL; 4 2. The petition is DENIED; 5 3. Petitioner’s request for the issuance of a certificate of appealability is DENIED; 6 and 7 4. The Clerk of Court is FURTHER DIRECTED to assign a district judge to this 8 matter for the purposes of closure and then to close this case. 9 10 IT IS SO ORDERED. ~ 4 11 | Dated: _ August 21, 2020 LL 1 Yrod UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28