(HC) Harper v. CDCR

Opinion

DANIEL HARPER, No. 2:20-cv-01119-TLN-GGH Petitioner, v. ORDER Respondent. Petitioner Daniel Harper (“Petitioner”), a state prisoner proceeding pro se, has filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 19, 2020, the magistrate judge filed findings and recommendations herein which were served on Petitioner and which contained notice to Petitioner that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 7.) On July 6, 2020, Petitioner filed Objections to the Findings and Recommendations, as well as a “First Amended Petition for Writ of Habeas Corpus.” (ECF Nos. 9–10.) This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis. The Court notes Petitioner’s so called “Objections” do not actually challenge or object to any of the findings in the Findings and Recommendations. (See ECF No. 10.) As such, they are overruled. As to Petitioner’s First Amended Petition, filed concurrently with his Objections and without leave of the Court (ECF No. 9), the Court construes the filing as a motion seeking leave to amend and hereby DENIES Petitioner’s motion. Furthermore, the proposed Amended Petition raises the same claims as the original Petition, which were correctly addressed and rejected by the Findings and Recommendations. (See ECF Nos. 1, 7, 9.) Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the /// Findings and Recommendations (ECF No. 7), the Court finds that issuance of a certificate of appealability is not warranted in this case. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendations filed June 19, 2020 (ECF No. 7), are adopted in full; 2. The Petition for Writ of Habeas Corpus (ECF No. 1) is summarily DISMISSED for failure to state a claim; 3. Petitioner’s First Amended Petition for Writ of Habeas Corpus (ECF No. 9) is DISMISSED and, to the extent it is construed as a Motion for Leave to Amended the Petition, such motion is DENIED; and 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. DATED: December 17, 2020