(HC)Higgs v. Cates ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE D. HIGGS, No. 2:21-CV-02415-KJM-DMC-P 12 Petitioner, ORDER 13 v. 14 B. CATES, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by Eastern District of California local rules. 20 On September 21, 2022, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. Timely objections to the findings and recommendations have 23 been filed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 26 the findings and recommendations to be supported by the record and by the proper analysis. The 27 court writes separately only to address petitioner’s objections. 28 ///// ] The root of petitioner’s claim is that the state trial court wrongfully focused the 2 || jury’s attention on how much larger petitioner was than his victim at the time of the offense. As 3 || the Magistrate Judge explained in his findings and recommendations, and as the California Court 4 || of Appeal explained on direct appeal, the trial court’s jury instructions did not deprive petitioner 5 || of his rights under the United States Constitution. The jury was tasked with deciding whether 6 || petitioner put the victim under duress. See People v. Higgs, No. C085090, 2019 WL 494492, at 7 || *2 (Cal. Ct. App. Feb. 8, 2019) (unpublished). To do so, state law required the Jury to consider 8 | “all the circumstances.” /d. (quoting J. Council of Cal., Crim. Jury Instruction No. 1111). The 9 || state trial and appellate courts decided a victim’s smaller size was one such “circumstance.” See 10 || id. This decision was not “contrary to” and did not involve “an unreasonable application □□□ □ 11 | clearly established Federal law, as determined by the Supreme Court of the United States.” 12 | 28 U.S.C. § 2254(d)(1). 13 The Court has considered whether to issue a certificate of appealability under Rule 14 | 11(a) of the Federal Rules Governing Section 2254 Cases. For the reasons in the Magistrate 15 || Judge’s findings and recommendations, a certificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed September 21, 2022, are adopted 18 | in full; 19 2. Petitioner’s petition for a writ of habeas corpus, ECF No. 1, is denied; 20 3. The Court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to enter judgment and close this file. 22 || DATED: January 12, 2023. 23 24 l ti / ¢ q_/ 95 CHIEF NT] ED STATES DISTRICT JUDGE 26 27 28