(HC) Daniel Frazer v. McDowell ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL FRAZER, No. 1:20-cv-01092-DAD-SAB-HC 12 Petitioner, ORDER ADOPTING AMENDED FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 NEIL MCDOWELL, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. No. 30) 16 17 Petitioner Daniel Frazer is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 26, 2022, the assigned magistrate judge issued amended findings and 21 recommendations recommending that the petition be denied. (Doc. No. 30.) The amended 22 findings and recommendations were served on the parties and contained notice that any 23 objections thereto were to be filed within thirty days after service. Petitioner filed timely 24 objections. (Doc. No. 31.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 27 objections, the court holds the amended findings and recommendations to be supported by the 28 record and proper analysis. 1 Specifically, the court rejects petitioner’s argument that the court was required to conduct 2 a retroactivity analysis pursuant to Teague v. Lane, 489 U.S. 288 (1989). As the Magistrate Judge 3 stated in the findings and recommendations, and as petitioner acknowledged in his objections, 4 Carpenter v. United States, 138 S. Ct. 2206 (2018) was decided while petitioner’s case was still 5 on direct appeal. (Doc. No. 30 at 20; Doc. No. 31 at 4.) Therefore, an opportunity to litigate that 6 claim existed on direct appeal. No retroactivity analysis is required or necessary. Additionally, 7 petitioner’s objections to the amended findings and recommendations claim that the Magistrate 8 Judge relied on hearsay and presumptions in concluding that the government obtained a search 9 warrant for petitioner’s phone records. (Doc. No. 31 at 4–7.) This is not the case. Rather, the 10 Magistrate Judge properly took judicial notice of a search warrant in the records of the Eastern 11 District of California seeking records from petitioner’s cell phone in 2010. (Doc. No. 30 at 21.) 12 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 13 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 14 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 15 petition on the merits, the court may only issue a certificate of appealability “if jurists of reason 16 could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 17 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 18 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 19 petitioner is not required to prove the merits of his case, he must demonstrate “something more 20 than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 21 U.S. at 338. 22 In the present case, the court finds that reasonable jurists would not find the court’s 23 determination that the petition should be denied debatable or wrong, or that the issues presented 24 are deserving of encouragement to proceed further. Petitioner has not made the required 25 substantial showing of the denial of a constitutional right. Therefore, the court declines to issue a 26 certificate of appealability. 27 /// 28 /// 1 Accordingly, 2 1. The amended findings and recommendation issued on April 21, 2021 (Doc. No. 30) 3 are adopted; 4 2. The petition for writ of habeas corpus is denied; 5 3. The Clerk of Court is directed to close the case; and 6 4. The court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. 10 Dated: _ September 2, 2022 UNITED fTATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28