(HC) Townsend v. Nevschmid ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TABARRI TOWNSEND, No. 1:22-cv-00590-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 PETITION FOR WRIT OF HABEAS CORPUS 14 v. (ECF Nos. 1, 23) 15 ORDER DIRECTING CLERK OF COURT TO 16 ENTER JUDGMENT AND CLOSE CASE ROBERT NEUSCHMID, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 18 19 Petitioner Tabarri Townsend is a state prisoner proceeding pro se and in forma pauperis 20 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On November 28, 2022, the Magistrate Judge issued findings and recommendations to 23 deny the petition on its merits. (ECF No. 23.) Petitioner filed objections on January 2, 2023. 24 (ECF No. 24.) Those objections consist mostly of assertions that the California Appellate Court 25 ruling that addressed Petitioner’s direct appeal was unreasonable and contrary to clearly 26 established federal law.1 (See generally id.) The Court agrees with the Magistrate Judge’s 27 1 Petitioner’s first objection is the only one he makes with any particularity. In it, he argues that the Magistrate Judge failed to analyze Manson v. Brathwaite, 432 U.S. 98 (1977) in assessing the due process implications of the certainty 28 factor in CALCRIM No. 315. (ECF No. 24 at 2.) While the Magistrate Judge did not cite to Manson, she did cite to 1 conclusion that this is not the case. Respondent did not file a reply. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 3 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 4 objections, the Court concludes that the Magistrate Judge’s findings and recommendations are 5 supported by the record and proper 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). Upon denying a petition, the court may only issue a certificate of 10 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 11 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 12 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 13 been resolved in a different manner or that the issues presented were ‘adequate to deserve 14 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 15 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 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 both Neil v. Biggers, 409 U.S. 188 (1972) – on which the Manson Court based its reasoning – and Perry v. New Hampshire, 565 U.S. 228 (2012) – which relied on both Biggers and Manson. (ECF No. 23 at 18.) The failure to 28 cite specifically to Manson was not error. 1 Accordingly, 2 1. The findings and recommendations issued on November 28, 2022, (ECF No. 23), 3 are adopted in full; 4 2. The petition for writ of habeas corpus, (ECF No. 1), is denied with prejudice; 5 3. The Clerk of Court is directed to enter judgment and close the case; and 6 4. The Court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. 10 Dated: _ February 14, 2023 UNITED fTATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28