(HC) McKuin v. Neuschmid ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. MCKUIN, No. 2:19-cv-02153-DAD-DB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITION FOR HABEAS RELIEF 14 ROBERT NEUSCHMID, (Doc. Nos. 1, 41) 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2016 first degree murder conviction 19 entered in the San Joaquin County Superior Court. In his petition for federal habeas relief, 20 petitioner asserts the following claims: (1) ineffective assistance by his appellate counsel in 21 failing to challenge the sufficiency of the evidence to support the conviction; (2) insufficient 22 evidence to support his first degree murder conviction; and (3) ineffective assistance of both trial 23 and appellate counsel in failing to challenge the admissibility of DNA expert testimony at his 24 trial. (Doc. No. 1 at 5–8.) The matter was referred to a United States Magistrate Judge pursuant 25 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 26 On April 6, 2023, the assigned magistrate judge issued findings and recommendations 27 recommending that the pending petition for federal habeas relief be denied. (Doc. No. 41.) 28 Specifically, the findings and recommendations found, as to petitioner’s claim that there was 1 insufficient evidence to support the jury’s guilty verdict as to the first degree murder charge, that 2 although there was arguably some conflicting evidence introduced at petitioner’s trial, the state 3 court’s finding that there was sufficient evidence to support his conviction was not objectively 4 unreasonable. (Id. at 11–15.)1 With respect to petitioner’s ineffective assistance of appellate 5 counsel claim, the findings and recommendations found that the state court reasonably concluded 6 that no deficient performance was rendered; noting that in the opening brief on petitioner’s appeal 7 his counsel raised the issue of the sufficiency of the evidence and cited the decision in Jackson v. 8 Virginia, 443 U.S. 307 (1979) in support of that argument. (Id. at 16.) Finally, as to petitioner’s 9 claim that both his trial and appellate counsel rendered ineffective assistance by failing to 10 challenge the admissibility of DNA expert testimony at his trial, the findings and 11 recommendations concluded that petitioner had failed to establish any prejudice stemming from 12 the allegedly deficient performance of his counsel in this regard. (Id. at 16–17.) Accordingly, it 13 was recommended that the pending petition for federal habeas relief be denied. (Id. at 17.) 14 The findings and recommendations were served on petitioner with notice that any 15 objections thereto were to be filed within thirty (30) days of the date of their service. (Id. at 17.) 16 On May 25, 2023, petitioner filed lengthy objections to the pending findings and 17 recommendations. (Doc. No. 42.)2 In those objections petitioner did not object to the 18 recommendation that his ineffective assistance of trial counsel claim be rejected and failed to 19 provide any basis for questioning the correctness of the analysis of his claims set forth in the 20 pending findings and recommendations. Rather, petitioner primarily repeats the arguments he 21 previously presented in support of his petition for federal habeas relief–arguments which were 22 ///// 23 1 The undersigned notes that in recommending that federal habeas relief be denied as to 24 petitioner’s insufficiency of the evidence claim, the findings and recommendations reflect a typographical error in stating “[b]ecause fairminded jurists could disagree with the state court’s 25 decision” and omitting the word “not” after “could” and before “disagree.” (See Doc. No. 41 at 15:7.) 26 27 2 It appears that petitioner’s objections were untimely filed even with application of the mail box rule. Nonetheless, the court has fully considered those objections as if they were timely filed 28 within the thirty-day period provided by the findings and recommendations. 1 thoroughly and appropriately addressed in the findings and recommendations. (Id. at 1–46; see 2 also Doc. Nos. 1, 38.)3 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes 5 that the magistrate judge’s findings and recommendations are supported by the record and proper 6 analysis. Therefore, the findings and recommendations will be adopted and petitioner’s request 7 for federal habeas relief will be denied on the merits. 8 In addition, the court declines to issue a certificate of appealability. A petitioner seeking 9 a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 10 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 11 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court 12 may only issue a certificate of appealability if “jurists of reason could disagree with the district 13 court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the 14 issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. 15 at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required 16 to prove the merits of his case, he must demonstrate “something more than the absence of 17 frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. In the 18 present case, the court concludes that reasonable jurists would not find the court’s determination 19 that the petition should be denied debatable or wrong, or that the issues presented are deserving of 20 encouragement to proceed further. Petitioner has not made the required substantial showing of 21 the denial of a constitutional right. Therefore, the court will decline to issue a certificate of 22 appealability. 23 ///// 24 ///// 25 3 In his objections, petitioner also suggests that he is innocent of the murder of which he was convicted, that his conviction is an “injustice” and “unconstitutional” and somehow reflects 26 prejudice against him based upon a perception that he is “lower class.” (Doc. No. 42 at 1.) 27 However, such arguments are unrelated to any of the claims (insufficiency of the evidence and ineffective assistance of trial and appellate counsel) presented in the pending petition for federal 28 habeas relief. 1 Accordingly: 2 1. The findings and recommendations issued on April 6, 2023 (Doc. No. 41) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 5 3. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 6 4. The Clerk of the Court is directed to close this case. 7 IT IS SO ORDERED. * | Datea: _December 8, 2023 Dal A. 2, oyel 9 DALE A. DROZD 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28