(HC) Hernandez v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JOSE HERNANDEZ, ) Case No.: 1:24-cv-0475 JLT SAB ) 12 Petitioner, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS, DENYING THE 13 v. ) PETITION FOR WRIT OF HABEAS CORPUS, ) AND DIRECTING THE CLERK OF COURT TO 14 PATRICK COVELLO, ) CLOSE THE CASE ) 15 Respondent. ) (Doc. 13) ) 16

17 Jose Hernandez, a state prisoner, is proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, asserting ineffective assistance of trial counsel because his attorney 19 failed to object to the prosecution’s introduction of certain evidence during closing arguments. (Doc. 1 20 at 5.) The magistrate judge found “it was not objectively unreasonable for the state court to find that 21 Petitioner had not demonstrated there was a reasonable probability that the result of the proceeding 22 would have been different if counsel had objected to the prosecutor’s alleged misconduct.” (Doc. 13 at 23 14; see also id. at 8-14.) Therefore, the magistrate judge determined that “Petitioner is not entitled to 24 habeas relief for ineffective assistance of counsel,” and recommended the petition be denied. (Id.) 25 The Court served the Findings and Recommendations on Petitioner and notified him that any 26 objections were due within 30 days. (Doc. 13 at 15.) The Court advised him that the “failure to file 27 objections within the specified time may waive the right to appeal the District Court’s order.” (Id., 28 citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did not file objections, 1 || and the time to do so has passed. According to 28 U.S.C. § 636(b)(1), this Court performed a de nov 2 || review of this case. Having carefully reviewed the matter, the Court concludes the Findings and 3 || Recommendations are supported by the record and proper analysis. 4 The Court must also determine whether a certificate of appealability should issue. A court mz 5 || issue a certificate of appealability where the petitioner has “made a substantial showing of the denial 6 || a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Ifa 7 || court denies a habeas petition on the merits, a certificate of appealability will only issue “if jurists of 8 reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or 9 || that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 10 || further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 11 || Petitioner is not required to prove the merits, he must demonstrate “that reasonable jurists would find 12 || the district court’s assessment of the constitutional claims debatable or wrong.” /d. at 323-24 (citing 13 || Slack, 529 U.S. at 1039-1040). This requires Petitioner to show “something more than the absence o: 14 || frivolity or the existence of mere good faith on his or her part.” /d. at 338 (internal quotation marks 15 omitted). The Court finds reasonable jurists would not find its determination that the petition should 16 || denied is debatable or wrong, or that Petitioner should be allowed to proceed. Petitioner did not make 17 || the required “substantial showing” of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). For 18 || this reason, the Court declines to issue a certificate of appealability. Accordingly, the Court ORDER 19 1. The Findings and Recommendations dated August 22, 2024 (Doc. 13) are ADOPTEL 20 in full. 21 2. The petition for writ of habeas corpus is DENIED. 22 3. The Court declines to issue a certificate of appealability. 23 4. The Clerk of Court is directed to close this case. 24 25 IT IS SO ORDERED. 26 || Dated: _ October 16, 2024 ( LAW pA L. wan 27 TED STATES DISTRICT JUDGE 28