(HC) Johnson v. Kernan

Opinion

1 2 3 4 5 6 7 10 11 JERRY C. JOHNSON, No. 2:17-cv-02525-DAD-AC (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITION FOR HABEAS RELIEF 14 SCOTT KERNAN, et al., (Doc. Nos. 1, 62) 15 Respondents. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2013 conviction in the Solano County 19 Superior Court for rape of an incompetent person with infliction of great bodily injury in violation 20 of California Penal Code § 261(a)(1). (Doc. No. 1.) In his petition, petitioner asserts the 21 following claims: (1) his rights under the Ex Post Facto Clause were violated because his victim 22 was not placed in conservatorship by her mother until after she became pregnant by petitioner; 23 (2) his due process and confrontation rights were violated when his defense counsel was 24 prohibited from cross-examining the victim’s mother and the investigating officer about their 25 earlier preliminary examination testimony; (3) his conviction was constitutionally defective 26 because there was insufficient evidence introduced at trial to establish that he knew or should 27 have known that his victim was incapable of consenting to intercourse due to a developmental 28 disability; and (4) ineffective assistance of trial counsel for failing to conduct a reasonable 1 investigation and to contact experts. (Id. at 6–7.) The matter was referred to a United States 2 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 3 On April 24, 2024, the assigned magistrate judge issued findings and recommendations 4 recommending that the pending petition for federal habeas relief be denied on the merits. (Doc. 5 No. 62.) In those extensive and well-reasoned findings and recommendations, each of 6 petitioner’s claims were analyzed and addressed in light of the state court’s rulings and the 7 applicable legal standards governing the granting of federal habeas relief. (Id. at 1–15.) In doing 8 so, the magistrate judge concluded with respect to each of petitioner’s claims that there was 9 nothing objectively unreasonable about the state court’s rejection of those claims under 28 U.S.C. 10 § 2254(d) (Id.) Accordingly, it was recommended that the pending petition for federal habeas 11 relief be denied. (Id. at 16.) 12 The findings and recommendations were served on petitioner with notice that any 13 objections thereto were to be filed within twenty-one (21) days of the date of their service. (Id.) 14 On June 18, 2024, after receiving an extension of time in which to do so, petitioner filed his 15 objections to the findings and recommendations. (Doc. No. 65.) Respondent filed a response to 16 petitioner’s objections on July 5, 2024. (Doc. No. 66.) 17 In his objections, petitioner merely reiterates his arguments advanced in support of his 18 petition which were thoroughly and appropriately addressed in the pending findings and 19 recommendations. In large part, petitioner’s objections essentially repeat his contention that the 20 evidence was insufficient to support his conviction because it failed to establish beyond a 21 reasonable doubt that he knew or should have known that the victim lacked the capacity to 22 consent. (Doc. No. 65 at 1–4.) Petitioner also argues the insufficiency of the evidence based 23 upon what he concedes is new evidence that did not exist or was not presented at the time of his 24 trial. (Id. at 2–7.) As the findings and recommendations properly concluded (Doc. No. 62 at 10), 25 such new evidence not presented to the jury cannot provide the basis for federal habeas relief on 26 an insufficiency of the evidence claim. Finally, nothing presented in petitioner’s objections calls 27 into question the conclusion reached in the findings and recommendations that his ineffective 28 ///// 1 assistance of trial counsel claim lacks merit.1 In short, petitioner’s objections fail to provide any 2 basis for questioning the correctness of the detailed analysis of his claims set forth in the findings 3 and recommendations. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 5 de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes 6 that the magistrate judge’s findings and recommendations are supported by the record and proper 7 analysis. Therefore, the findings and recommendations will be adopted and petitioner’s request 8 for federal habeas relief will be denied on the merits. 9 In addition, the court declines to issue a certificate of appealability. A petitioner seeking a 10 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 11 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335– 12 36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only 13 issue a certificate of appealability if “jurists of reason could disagree with the district court’s 14 resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues 15 presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; 16 see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to 17 prove the merits of his case, he must demonstrate “something more than the absence of frivolity 18 or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. In the present 19 case, the court concludes that reasonable jurists would not find the court’s determination that the 20 petition should be denied debatable or wrong, or that the issues presented are deserving of 21 encouragement to proceed further. Petitioner has not made the required substantial showing of 22 the denial of a constitutional right. Therefore, the court will decline to issue a certificate of 23 appealability. 24 ///// 25 ///// 26

27 1 Petitioner’s objections present no argument as to his claims based upon the Ex Post Facto Clause and due process/confrontation rights due to the asserted limitation placed upon the defense 28 cross-examination of prosecution witnesses. 1 Accordingly: 2 1. The findings and recommendations issued on April 24, 2024 (Doc. No. 62) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 5 3. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 6 4. The Clerk of the Court is directed to close this case. * | Dated: _ August 22, 2024 Dab A. 2, sxe 10 UNITED STATES DISTRICT JUDGE

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