(HC) Garrett v. Moore ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES DEVON GARRETT, ) Case No.: 1:22-cv-0899 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, DENYING MOTION 13 v. ) FOR SUMMARY JUDGMENT, DENYING THE ) THIRD AMENDED PETITION FOR WRIT OF 14 SEAN MOORE, ) HABEAS CORPUS, DENYING REQUESTS ) FOR JUDICIAL NOTICE, DIRECTING CLERK 15 Respondent. ) OF COURT TO CLOSE CASE, AND ) DECLINING TO ISSUE CERTIFICATE OF 16 ) APPEALABILITY ) 17 ) (Docs. 42, 50, 52, 53, 54) 18 Charles Devon Garrett is a state prisoner proceeding pro se on his Third Amended Petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 42.) The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 The assigned magistrate judge issued Findings and Recommendations, which concluded 22 that Petitioner’s motion for summary judgment be denied, the Third Amended Petition be denied, 23 Petitioner’s requests for judicial notice be denied, and that the Court decline to issue a certificate 24 of appealability. (Doc. 54.) Petitioner filed objections to the Findings and Recommendations on 25 October 30, 2023 and November 2, 2023. (Docs. 55, 58.) Thereafter, Petitioner also filed a 26 motion for sanctions, based upon the erroneous belief that an electronic signature found on 27 Respondent’s was insufficient to meet the requirements for signing documents. (See Doc. 62.) 28 In his objections—aside from restating arguments previously made in the Third Amended 1 Petition—Petitioner argues: (1) the assigned magistrate judge is biased, (2) Respondent did not 2 file previous state habeas petitions raising the judicial bias claim as a “tactic” relevant to 3 Respondent’s procedural default argument, (3) the magistrate judge failed to consider Petitioner’s 4 Equal Protection argument, and (4) the magistrate judge failed to take judicial notice sua sponte 5 “with regard to Petitioner’s acquittal” of a previous gun possession charge. (See generally Docs 6 55, 58.) 7 As an initial matter, Petitioner fails to provide evidence of bias. For example, Petitioner 8 fails to explain how his previous habeas petitions, or failure to sua sponte take judicial notice of 9 certain information, undermine the magistrate judge’s finding as to the merits of his judicial bias 10 claim stated in the Petition. 11 With the equal protection claim, Petitioner argues that he is “being treated differently 12 because he is African American and indigent.” (Doc. 55 at 12-13.) Notably, however, though the 13 Third Amended Petition generally references deprivation of “equal protection of the laws” as part 14 of his judicial bias claim, the Petition does not include any specific argument as to disparate 15 treatment based on race or economic status, and Petitioner did not allege that similarly situated 16 individuals were treated differently in any manner. See Boardman v. Inslee, 978 F.3d 1092, 1117 17 (9th Cir. 2000) (“To prevail on [his] equal-protection claim, [Petitioner] ‘must [first] show that a 18 class that is similarly situated has been treated disparately.”). Rather, Petitioner claims he was 19 “deprived of Equal Protection of the laws and Due Process of the law as he was denied his 20 constitutional right to a ‘fair impartial trial before a fair impartial and disinterested judge,’ due to 21 Judge Cardoza’s unconstitutional failure to recuse herself from Petitioner’s trial proceedings, on 22 the basis of ‘her (Judge Cardoza) [sic] participation during the accusatory process of Petitioner’s 23 underlying case was of critical import that require’s [sic] recusal.” (Doc. 42 at 22). The 24 magistrate judge properly considered this argument pursuant to clearly established law, and found 25 Petitioner failed to show that his due process right to a fair and impartial trial in front of an 26 impartial judge were violated because Judge Cardoza, as the presiding trial judge, previously 27 signed a search warrant in a separate matter authorizing a search of Petitioner’s property. (Doc. 28 54 at 9-13.) These objections, along with the restatement of arguments previously made in his 1 Third Amended Petition and reply, do not show any legal error by the magistrate judge, and the 2 objections are overruled. 3 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 4 Having carefully reviewed the entire file, including Petitioner’s objections, the Court concludes 5 that Findings and Recommendations are supported by the record and proper analysis. 6 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather 7 an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 8 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only 9 issue a certificate of appealability “if jurists of reason could disagree with the district court’s 10 resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues 11 presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; 12 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Though the petitioner is not required to prove the 13 merits of his case, he must demonstrate “something more than the absence of frivolity or the 14 existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. 15 The Court finds that reasonable jurists would not find the Court’s determination that the 16 petition should be denied debatable or wrong, or that the issues presented are deserving of 17 encouragement to proceed further. Petitioner has not made the required substantial showing of the 18 denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability 19 Based upon the foregoing, the Court ORDERS: 20 1. The Findings and Recommendations issued on October 19, 2023 (Doc. 54) are 21 ADOPTED in full. 22 2. Petitioner’s Motion for Summary Judgment (Doc. 50) is DENIED. 23 3. The Third Amended Petition for writ of habeas corpus (Doc. 42) is DENIED. 24 4. Petitioner’s requests for judicial notice (Docs. 52, 53) are DENIED. 25 5. The Court declines to issue a certificate of appealability. 26 6. Petitioner’s motion for sanctions (Doc. 62) is DENIED as moot. 27 /// 28 /// 1 7. The Clerk of the Court is directed to terminate any pending motions/deadlines and 2 CLOSE the case. 3 4 IT IS SO ORDERED. 5 Dated: _ December 20, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28