(HC) Bisel v. Fisher ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE BISEL, No. 1:17-cv-00013-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITITON FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE 14 CERTIFICATE OF APPEALABILITY 15 RAY FISHER, JR., (ECF No. 79) 16 Respondent. 17 18 Petitioner Gregory Eugene Bisel (“Petitioner”) is a registered sex offender and state parolee 19 proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 § 636(b)(1)(B) and Local Rule 302. 22 On June 17, 2022, the assigned Magistrate Judge issued findings and recommendations to 23 deny the petition on its merits. (ECF No. 79.) Those findings and recommendations were served 24 upon all parties and contained notice that any objections thereto were to be filed within thirty days 25 after service. After being granted five extensions of time, on December 14, 2022, Petitioner filed 26 objections to the findings and recommendations. (ECF No. 94.) 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 28 1 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 2 objections, the Court concludes that the Magistrate Judge’s findings and recommendations are 3 supported by the record and proper analysis. Petitioner's objections present no grounds for 4 questioning the Magistrate Judge's analysis. 5 Throughout his objections, Petitioner makes conclusory statements, such as that the 6 Magistrate Judge “seems unable, or unwilling to follow the flow of events, exhibits, and 7 unsupportive portions of the record presented by Petitioner,” without explaining the alleged 8 deficiencies in the Magistrate Judge’s assessment of the record. (ECF No. 94 at 1.) Petitioner 9 further conclusively states that the Magistrate Judge “has apparently opted to follow the state AG’s 10 much-flawed, incomplete, inattentive, and misleading interpretation of the record,” without 11 addressing the Magistrate Judge’s analysis itself. (Id.) 12 Petitioner also fails to apply the Strickland standard to support his claim for ineffective 13 assistance of counsel and does not establish that his counsel’s deficient performance fell below the 14 objective standard of reasonableness under prevailing professional norms. See Strickland v. 15 Washington, 466 U.S. 668, 687-88 (1984). Rather, Petitioner notes his counsel’s omissions, which 16 do not satisfy the Strickland test. (See ECF No. 94 at 3.) 17 Petitioner further erroneously claims that the Magistrate Judge failed to consider certain 18 information in the findings and recommendations, including allegedly ignoring Petitioner’s 19 counsel’s impeachment of Officer Jose Jauregui. (Id. at 4.) However, the Magistrate Judge did, in 20 fact, consider Petitioner’s counsel’s impeachment of Officer Jauregui, including all arguments and 21 exhibits, to come to the justified determination that Petitioner’s constitutional rights have not been 22 violated. (See ECF No. 79 at 18-28.) 23 Among the documents that Petitioner requests that the Court consider in determining 24 whether to decline or adopt the findings and recommendations is the previously assigned District 25 Judge’s order declining findings and recommendations entered on June 6, 2021. (ECF No. 94 at 26 8.) The order concerned whether Petitioner’s claims were timed barred, which has no bearing to 27 whether Petitioner’s writ of habeas corpus should be granted. (See ECF No. 57.) Overall, the Court 28 finds Petitioner’s objections unpersuasive. 1 In addition, the Court declines to issue a certificate of appealability. A state prisoner 2 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 3 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 4 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 5 appealability is 28 U.S.C. § 2253, which provides as follows: 6 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of 7 appeals for the circuit in which the proceeding is held. 8 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 9 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 10 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 11 appeal may not be taken to the court of appeals from— 12 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 13 court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 16 right. 17 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 18 19 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability 20 when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 21 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 22 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 23 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 24 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 25 893 (1983)). 26 In the present case, the Court finds that Petitioner has not made the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. 28 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal 1 | habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, 2 | the Court declines to issue a certificate of appealability. 3 Accordingly, 4 1. The findings and recommendations issued on June 17, 2022, (ECF No. 79), are 5 ADOPTED IN FULL; 6 2. The petition for writ of habeas corpus is DENIED, with prejudice; 7 3. The Clerk of Court is directed to enter judgment and close the case; and 8 4. The Court declines to issue a certificate of appealability. 9 | This order terminates the action in its entirety. 10 11 12 | TIS SO ORDERED. 13 Dated: _ January 25, 2023 4 UNITED fTATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28