(HC) Mims v. Burton ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE MIMS, No. 2:22-cv-00521-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 ROBERT BURTON, AMENDED PETITION FOR FAILURE TO STATE A COGNIZABLE FEDERAL 15 Respondent. HABEAS CLAIM 16 (Doc. Nos. 15, 16) 17 18 Petitioner George Mims proceeds pro se and in forma pauperis with a petition for a writ 19 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 12, 2022, the assigned magistrate judge issued findings and recommendations 22 recommending that the amended petition before the court be dismissed for failure to state a 23 cognizable claim for federal habeas relief because the sole claim asserted therein was that the trial 24 court misapplied state sentencing law.1 (Doc. No. 16 at 1–2.) Those findings and 25 recommendations were served on all parties and contained notice that any objections thereto were 26 to be filed within fourteen (14) days from the date of service. (Id. at 2.) On September 6, 2022, 27 28 1 On August 25, 2022, this case was reassigned to the undersigned district judge. (Doc. No. 17.) 1 petitioner filed objections to the pending findings and recommendations. (Doc. No. 18.) 2 Respondent filed no response to those objections. 3 In his objections to the pending findings and recommendations petitioner merely submits 4 a copy of a petition for writ of habeas corpus that he apparently submitted to the California 5 Supreme Court in March of 2022. In that petition he appeared to argue that the state trial court’s 6 reliance on California’s Three Strikes Law in imposing his current sentence in effect violated his 7 plea agreements in the earlier state cases that were counted as strikes. (Doc. No. 18 at 8.) This 8 argument provides no basis upon which to question or reject the pending findings and 9 recommendations. 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 11 court has conducted a de novo review of this case. Having carefully reviewed the entire file, and 12 considered petitioner’s objections, the court finds the findings and recommendations to be 13 supported by the record and proper analysis. 14 Additionally, the court declines to issue a certificate of appealability. A certificate of 15 appealability may issue “only if the applicant has made a substantial showing of the denial of a 16 constitutional right.” 28 U.S.C. § 2253(c)(2); see, e.g., Williams v. Calderon, 83 F.3d 281, 286 17 (9th Cir. 1996). “A petitioner satisfies this standard by demonstrating that jurists of reason could 18 disagree with the district court’s resolution of his constitutional claims or that jurists could 19 conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller- 20 El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483–84 21 (2000). In determining these issues, a court conducts an overview of the claims in the habeas 22 petition, generally assesses their merits, and determines whether the resolution was debatable 23 among jurists of reason or wrong. Miller-El, 537 U.S. at 336. 24 When a district court dismisses a petition on procedural grounds, the reviewing court 25 should apply a two-step analysis, and a certificate of appealability should issue if the petitioner 26 can show (1) that jurists of reason would find it debatable whether the district court was correct in 27 its procedural ruling, and (2) that jurists of reason would find it debatable whether the petition 28 states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 478. 1 Here, reasonable jurists would not find the court’s decision to dismiss the pending petition 2 || due to its failure to assert a cognizable federal habeas claim to be debatable or conclude that the 3 || petition should proceed further. Thus, the court declines to issue a certificate of appealability. 4 Accordingly, 5 1. The findings and recommendations filed on August 12, 2022 (Doc. No. 16) are 6 adopted in full; 7 2. The amended petition (Doc. No. 15) is dismissed for failure to state a cognizable 8 claim for federal habeas relief; 9 3. The court declines to issue a certificate of appealability; and 10 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. | Dated: _Mareh 1, 2023 □□□ A. 2, eel 13 UNITED STATES DISTRICY JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28