(HC) Davis 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 JEROME MARKIEL DAVIS, No. 2:21-CV-01900-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 habeas 18 corpus under 28 U.S.C. § 2254. Petitioner also brings a motion for new trial. The matters were 19 referred to a United States Magistrate Judge as provided by Eastern District of California local 20 rules. 21 On September 12, 2022, the magistrate judge filed findings and recommendations, which 22 were served on the parties and which contained notice that the parties may file objections within 23 the time specified therein. No objections to the findings and recommendations have been filed. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the 27 magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). 28 Having reviewed the file, the court finds the findings and recommendations to be supported by 1 | the record and by the proper analysis. As the magistrate judge found, “[w]hile juries must receive 2 || instruction on lesser included offenses in capital cases . . . the failure of a state trial court to 3 || instruct sua sponte on lesser included offenses in a non-capital case does not present a federal 4 | constitutional question.” Burgess v. Galaza, 211 F.3d 1272 (9th Cir. 2000) (internal citations, 5 || marks and emphasis omitted). 6 The court has also considered whether to issue a certificate of appealability under Rule 7 || 11(a) of the Federal Rules Governing Section 2254 Cases. Before petitioner can appeal this 8 | decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 9 || Where the petition is denied on the merits, a certificate of appealability may issue under 10 | 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 11 | constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 12 || appealability indicating which issues satisfy the required showing or must state the reasons why 13 || sucha certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 14 | procedural grounds, a certificate of appealability should issue if the prisoner can show “jurists of 15 || reason would find it debatable whether the petition states a valid claim of the denial of a 16 | constitutional right and that jurists of reason would find it debatable whether the district court was 17 || correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons 18 | set forth in the magistrate judge’s findings and recommendations, the court finds that issuance of 19 | acertificate of appealability is not warranted in this case. 20 Accordingly, IT IS HEREBY ORDERED: 21 1. The findings and recommendations filed September 12, 2022, are adopted in full; 22 2. Petitioner’s first amended petition for a writ of habeas corpus, ECF No. 10, is 23 || denied; 24 3. The court declines to issue a certificate of appealability; 25 4. Petitioner’s motion, ECF No. 18, for a new trial is denied; and 26 5. The Clerk of the Court is directed to enter judgment and close this file. 27 || DATED: January 24, 2023. [\ (] 28 l soe / f os CHIEF ONT] ED STATES DISTRICT JUDGE