(HC) Cooper v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN M. COOPER, No. 2:22-cv-01632-DAD-KJN (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITIONER’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PETITION 14 PATRICK COVELLO, Warden, FOR HABEAS RELIEF ON THE MERITS 15 Respondent. (Doc. Nos. 17, 18) 16 17 Petitioner is a state prisoner proceeding with counsel on a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 19, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that petitioner’s motion for summary judgment be denied and that the pending 22 petition for federal habeas relief be denied on the merits as well. (Doc. No. 19.) Specifically, the 23 magistrate judge determined that petitioner’s claims were barred from federal habeas review 24 because they were procedurally defaulted as evidenced by the California Supreme Court denying 25 habeas relief on those claims. (Doc. No. 19 at 12–14) (citing In re Clark, 5 Cal. 4th 750, 759 26 ///// 27 ///// 28 ///// 1 (1993) (finding successive petitions to be barred).1 In addition, the magistrate judge concluded 2 that petitioner had failed to show cause for his procedural default or actual prejudice (including a 3 fundamental miscarriage of justice or actual innocence) should his related claims for federal 4 habeas relief not be reviewed. (Id. at 13–14.) Finally, the magistrate judge observed that 5 petitioner’s arguments in support of his motion for summary judgment were the same as his 6 arguments advanced in support of his petition and should therefore be rejected as well. (Id. at 7 14.) 8 The findings and recommendations were served on petitioner with notice that any 9 objections thereto were to be filed within fourteen (14) days of the date of their service. (Id.) 10 After receiving two extensions of time in which to do so, (Doc. Nos. 26, 29), petitioner’s 11 objections to the pending findings and recommendations were received by the court on August 12 21, 2023. (Doc. No. 31.) Respondent did not file any reply to petitioner’s objections and the time 13 to do so has passed. 14 In his objections petitioner asserts his actual innocence based upon the same assertion that 15 he has advanced in his prior petitions—that although Bruce Lavergne owned Pacific Auto which 16 had acquired the truck in question, Lavergne was out of town at the time the truck was stolen and 17 was therefore not the victim of the car theft nor was he the reporting party of the theft. (Id. at 18 1–2.) Petitioner also questions the sufficiency of the evidence that he, petitioner, was seen exiting 19 the stolen vehicle. (Id. at 2.) These arguments, repeated in his objections, are clearly insufficient 20 to show that a miscarriage of justice will occur if his claims are found to be barred from federal 21 habeas review and likewise fail to support of claim of petitioner’s actual innocence. 22 In short, none of the arguments presented in petitioner’s objections provide any basis upon which 23 to question the analysis set forth in the pending findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 26 1 The findings and recommendations note that in addition to appealing from his judgment of 27 conviction, petitioner filed at least ten petitions for habeas relief in the Sacramento County Superior Court and the California Court of Appeals, in addition to five petitions seeking habeas 28 relief filed with the California Supreme Court. (Doc. No. 19 at 2.) 1 | objections, the undersigned concludes that the magistrate judge’s findings and recommendations 2 | are supported by the record and proper analysis. Therefore, the findings and recommendations 3 | will be adopted and petitioner’s request for federal habeas relief will be denied as procedurally 4 | defaulted and therefore barred. 5 Having found that the petitioner is not entitled to habeas relief, the court now turns to 6 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 7 | has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only 8 || allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 9 | § 2253. Where, as here, a court denies habeas relief on procedural grounds without reaching the 10 | underlying constitutional claims, the court should issue a certificate of appealability only “if 11 | jurists of reason would find it debatable whether the petition states a valid claim of the denial of a 12 | constitutional right and that jurists of reason would find it debatable whether the district court was 13 || correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present 14 | case, the court finds that reasonable jurists would not find the court’s decision to deny the petition 15 | debatable or wrong. Therefore, the Court declines to issue a certificate of appealability. 16 Accordingly: 17 1. The findings and recommendations issued May 19, 2023 (Doc. No. 19), are 18 adopted in full; 19 2. Petitioner’s motion for summary judgment (Doc. No. 17) is denied; 20 3. Petitioner’s petition for a writ of habeas corpus is denied; 21 4. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 22 5. The Clerk of the Court is directed to close this case. 23 IT IS SO ORDERED. *" | Dated: _ September 7, 2023 Da A. 2, axel 25 DALE A. DROZD UNITED STATES DISTRICT JUDGE 27 28