(HC) Johnson v. Sherman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY RAY JOHNSON, No. 1:21-cv-01313-ADA-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 STUART SHERMAN, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF No. 24) 16 17 Petitioner Billy Ray Johnson is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 18, 2022,1 the assigned Magistrate Judge issued findings and 21 recommendations recommending the petition be denied. (ECF No. 24.) The findings and 22 recommendations were served on the parties and contained notice that any objections thereto 23 were to be filed within thirty days (30) after service. (Id.) Petitioner timely filed objections. 24 (ECF No. 26.) Petitioner’s objections largely restate his initial arguments to the California Court 25 of Appeal, Fifth Appellate District; therefore, Petitioner’s objections are unpersuasive. (Id.) 26 /// 27 1 The findings and recommendations were signed on August 17, 2022, but were not docketed 28 until August 18, 2022. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 3 objections, the Court holds the findings and recommendations to be supported by the record and 4 proper analysis. 5 Having found that 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 8 allowed in only certain circumstances. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) 9 (Miller-El); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may 10 issue a certificate of appealability only if “jurists of reason could disagree with the district court’s 11 resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues 12 presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; 13 Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the 14 merits of his case, he must demonstrate “something more than the absence of frivolity or the 15 existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. 16 Here, the Court finds that reasonable jurists would not find the Court’s determination that 17 the petition be denied debatable or wrong, or that the issues presented are deserving of 18 encouragement to proceed. Petitioner has not made the required substantial showing of the denial 19 of a constitutional right. Therefore, the Court declines to issue a certificate of appealability. 20 Accordingly, 21 1. The findings and recommendations issued on August 18, 2022 (ECF No. 24), are 22 adopted in full; 23 2. The petition for writ of habeas corpus is denied; 24 /// 25 /// 26 /// 27 /// 28 /// 1 3. The Clerk of Court is directed to close the case; and 2 4. The Court declines to issue a certificate of appealability. 3 4 5 | ISSO ORDERED. 6 Dated: _ November 2, 2022 ; UNITED $TATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28