(HC) Johnson v. Gipson

• Court: District Court, E.D. California
• Decided: August 15, 2024
• Docket: 2:21-cv-00971
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS MAURICE JOHNSON, No. 2:21-cv-00971 KJM AC P 12 Petitioner, 13 v. ORDER 14 CONNIE GIPSON, Warden, 15 Respondent. 16 17 Petitioner, a former California state prisoner proceeding pro se,1 has filed this application 18 for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 18, 2023, the magistrate judge filed findings and recommendations, which 21 were served on all parties, and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within twenty-one days. Petitioner has filed 23

24 1 Although petitioner is no longer in custody, his release does not moot his request for habeas relief because he challenges his underlying conviction. See Pet. at 61, ECF No. 1 25 (requesting the reversal of judgment); see also Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 26 2003) (“A habeas petition challenging the underlying conviction is never moot simply because, subsequent to its filing, the petitioner has been released from custody.” (citation omitted)); 27 Mateen v. Shinn, No. 22-01508, 2023 WL 8596197, at *1 n.1 (D. Ariz. Dec. 12, 2023) (holding 28 similarly). 1 objections to the findings and recommendations, Objs., ECF No. 32, as well as a motion for a 2 certificate of appealability, Mot., ECF No. 33. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. The court has carefully reviewed petitioner’s 5 objections and finds they largely repeat the petitioner’s allegations in his habeas petition and 6 arguments in traverse, which the magistrate judge has already considered. Compare Objs., with 7 Pet. and Traverse, ECF No. 24. Having reviewed the file, the court finds the findings and 8 recommendations to be supported by the record and by the proper analysis. It is not the role of 9 this court to determine whether the state court correctly applied federal law or whether this court 10 would have reached a different conclusion. See Woodford v. Visciotti, 537 U.S. 19, 24–25, 27 11 (2002). Rather, the court’s role is limited to determining whether the state court’s decision was 12 objectively unreasonable. Here, it was not. 13 Petitioner also moves for a certificate of appealability. See Mot. In accordance with Rule 14 11(a) of the Federal Rules Governing Section 2254 Cases, the court has considered whether to 15 issue a certificate of appealability. Before petitioner can appeal this decision, a certificate of 16 appealability must be issued. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition 17 is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if 18 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 19 § 2253(c)(2). “[T]he showing required to satisfy § 2253(c) is straightforward: The petitioner 20 must demonstrate that reasonable jurists would find the district court’s assessment of the 21 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 The court finds the petitioner has made this showing only as to his cumulative error claim. 23 In the state court decision, the state appellate court found “although there were several errors, 24 [petitioner] was not prejudiced, individually or cumulatively.” State Court Opinion at 5, ECF 25 No. 17-22.2 Specifically, the state appellate court found the trial court abused its discretion in 26 precluding a witness’s prior statements, id. at 27, and two experts’ testimonies, id. at 34, 44, trial 27 2 When citing page numbers on filings, the court uses the pagination automatically generated by 28 the CM/ECF system. 1 | counsel’s performance was deficient in certain respects, id. at 39, 47, 55, and the prosecutor’s 2 | closing arguments were “clearly” and “highly” improper, id. at 57, 60. However, the state 3 || appellate court found petitioner “was not deprived of a fair trial.” Jd. at 62. Although the court 4 || finds the state court’s decision was not objectively unreasonable, reasonable jurists may find this 5 || court’s assessment debatable. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (‘[A] claim 6 || can be debatable even though every jurist of reason might agree, after the COA has been granted 7 || and the case has received full consideration, that petitioner will not prevail.”). Therefore, the 8 | court grants a certificate of appealability as to the cumulative error claim. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The findings and recommendations filed August 18, 2023 (ECF No. 27) , are adopted 11 | in full. 12 2. The petition for writ of habeas corpus is denied. 13 3. The motion for a certificate of appealability (ECF No. 33) is denied in part and granted 14 | mnpart. The court grants a certificate of appealability only as to the question whether cumulative 15 | errors in petitioner’s state court proceedings deprived petitioner of a fair trial in violation of due 16 || process. 17 4. The Clerk of the Court is directed to close this case. 18 | DATED: August 14, 2024. 19 20 CHIEF ED STATES DISTRICT JUDGE

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