(HC) Cross v. Kings County Sheriff

Opinion

JEROME LEE CROSS, Case No. 1:23-cv-01246 JLT SAB (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT KINGS COUNTY SHERIFF, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. 12) Jerome Lee Cross is proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, on two claims for relief: (1) insufficiency of evidence to convict him and (2) a jury instruction error. (Doc. 1.) The magistrate judge found Petitioner was not entitled to habeas relief on his first claim, because the “state court’s decision denying Petitioner’s sufficiency of evidence claim was not contrary to, or an unreasonable application of, clearly established federal law.” (Doc. 12 at 14.) In addition, the magistrate judge found the state court’s decision was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” (Id., citation omitted.) The magistrate judge found Petitioner was “procedurally barred” from bringing his claim for a jury instruction error. (Id. at 15.) Further, the magistrate judge determined Petitioner’s instructional error “claim is without merit,” and he was “not entitled to habeas relief on his second claim. (Id. at 15-16.) Therefore, the magistrate judge recommended the petition for writ of habeas corpus be denied. (Id. at 17.) The Court served the Findings and Recommendations on Petitioner and notified him that any objections were due within 30 days. (Doc. 12 at 17.) The Court advised Petitioner the “failure to file objections within the specified time may waive the right to appeal the District Court’s order.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file objections, and the time to do so has passed. According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court must address whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, then it may only issue a certificate of appealability “if jurists of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While Petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his … part.” Miller-El, 537 U.S. at 338. In the present case, reasonable jurists would not find the Court’s determination that the petition should be denied debatable or wrong, or that Petitioner should be allowed to proceed further. Petitioner did not make the required substantial showing of the denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability. Based upon the foregoing, the Court ORDERS: 1. The Findings and Recommendations issued on February 26, 2024 (Doc. 12) are 2. The petition for writ of habeas corpus is DENIED. 3. The Clerk of Court is directed to close the case. 4. The Court declines to issue a certificate of appealability Dated: _ April 19, 2024 Charis [Tourn TED STATES DISTRICT JUDGE