(HC) Kyle S. Cooper v. D. Baughman

• Court: District Court, E.D. California
• Decided: July 23, 2020
• Docket: 2:16-cv-03039
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE S. COOPER, No. 2:16-cv-3039 DB 12 Petitioner, 13 v. ORDER 14 D. BAUGHMAN, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all 19 purposes pursuant to 28 U.S.C. § 636(c). (ECF Nos 7, 13). Presently before the court is the 20 petition (ECF No. 1) and respondent’s answer for merits review (ECF No. 17). For the reasons 21 set forth below the court will deny habeas relief. 22 BACKGROUND 23 I. Procedural History 24 On December 17, 2013, a jury found petitioner guilty of three counts of robbery and 25 determined that he personally used a firearm in the commission of each robbery. (ECF No. 17 at 26 21.) On June 5, 2015, the trial court sentenced defendant to a total of thirty-seven years in prison 27 for the robberies, use of a firearm, possession of an SKS assault rifle, and for incurring a prior 28 strike. (Id.) The sentences for being a felon in possession of a firearm were stayed. (Id.) 1 Petitioner appealed the conviction. Appellate counsel filed a brief pursuant to People v. 2 Wende, 25 Cal.3d 436 (1979), indicating counsel could not find any arguable error that would 3 result in a more favorable disposition. The California Court of Appeal for the Third District 4 affirmed the conviction. People v. Cooper, No. C079747, 2016 WL 12222756, at *1-2 (Cal. Ct. 5 App. Mar. 29, 2016). Petitioner did not appeal the California Court of Appeal’s decision. 6 Thereafter, he filed a petition for writ of habeas corpus in the California Supreme Court on 7 November 16, 2016. (LD1 8.) The California Supreme Court denied the petition without 8 comment or citation. (LD 9.) 9 II. Facts Developed at Trial 10 The California Court of Appeal for the Third District provided the following factual 11 summary: 12 On November 27, 2012, at approximately 11:30 a.m., Jag Singh was working alone at an AM/PM on Madison Avenue in Fair Oaks when 13 defendant came into the store wearing a brown jacket and hat. Defendant told Singh he wanted Newport 100 cigarettes. Singh got 14 the cigarettes and placed them on the counter. Defendant pulled out some bills and then reached into his pocket, pulled out a small black 15 gun, pointed it at Singh and told him to “get back.” Defendant then reached over the counter and took money from the open cash register. 16 Defendant left with about $400. Singh was able to identify defendant as the man who robbed him. 17 Also on November 27, 2012, at approximately 2:30 p.m., Ramon 18 Orozco was working alone at an AM/PM on Florin Road in Sacramento, when defendant came into the store and robbed him at 19 gunpoint with a small black short-barreled revolver. Defendant asked for Newport cigarettes and, as soon as the cash register opened, 20 he lunged over the counter, took approximately $230 to $250 in cash from the register and left. The robbery was captured on the store 21 surveillance camera. Orozco was also able to identify defendant as the man who robbed him. 22 On November 30, 2012, at approximately 6:00 p.m., Davinder 23 Kumar was working alone at a Shell gas station on East Stockton Boulevard in Elk Grove, when defendant came into the store and 24 asked him for some “GPC Red” cigarettes. When Kumar opened the register, defendant pulled out a revolver, told him to “step back,” 25 took cash from the register, and walked out. Defendant was wearing a black jacket and a black San Francisco Giants baseball hat with 26

27 1 Respondent lodges the state court record here. (See ECF No. 18.) Documents are identified by their Lodged Document number, “LD,” assigned to them by respondent. 28 1 blue accents. The robbery was captured by the store surveillance camera. 2 Defendant was arrested on December 4, 2012. In his car, police 3 found a Smith & Wesson snub-nose revolver containing two live .38 cartridges and three expended casings. Police then went to 4 defendant’s home address and inside another of defendant’s cars, found a loaded Norinco SKS assault rife with an extended magazine 5 containing 7.62 cartridges. The car also contained clothing matching that which defendant wore during the Shell gas station robbery. 6 Defendant was charged with three counts of robbery (Pen. Code, § 7 211; counts one, three and five), [FN 2: Undesignated statutory references are to the Penal Code.] four counts of being a felon in 8 possession of a firearm (§ 29800, subd. (a)(1); counts two, four, six, and eight), and one count of possession of an SKS assault rifle (§ 9 30605, subd. (a); count seven). It was further alleged that defendant personally used a firearm in the commission of each robbery. (§ 10 12022.53, subd. (b).) It was also alleged that defendant had a prior strike conviction in 2000 for assault with a firearm. (§§ 667, subds. 11 (b)-(i), 1170.12.) 12 On December 17, 2013, a jury found defendant guilty of all counts and found true that he personally used a firearm in the commission 13 of each robbery. At a subsequent bench trial, the trial court found the prior felony strike conviction true. 14 People v. Cooper, C079747, 2016 WL 1222756 at **1-2 (Ca. Ct. App. March 29, 2016). 15 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 16 To state a claim for relief cognizable in habeas a petitioner must allege a violation of the 17 Constitution or federal law. 28 U.S.C. § 2254(a) (A prisoner in custody pursuant to the judgment 18 of a state court may seek federal habeas relief “only on the ground that he is in custody in 19 violation of the Constitution or laws or treaties of the United States.”). Title 28 U.S.C. § 2254(d) 20 sets forth the following standards for granting federal habeas corpus relief: 21 An application for a writ of habeas corpus on behalf of a person in 22 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State 23 court proceedings unless the adjudication of the claim – 24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 25 determined by the Supreme Court of the United States; or 26 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 27 State court proceeding.

28 1 “Clearly established federal law” means federal law that is clearly defined by the holdings of the 2 United States Supreme Court at the time of the state-court decision. Cullen v. Pinholster, 563 3 U.S. 170, 182 (2011). “‘[C]ircuit court precedent may be persuasive in determining what law is 4 clearly established and whether a state court applied that law unreasonably.’” Stanley v. Cullen, 5 633 F.3d 852, 859 (9th Cir. 2011) (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). 6 In determining whether a decision is “contrary to” clearly established federal law, a 7 reviewing court must evaluate whether the decision “‘applies a rule that contradicts [such] law’” 8 and how the decision “‘confronts [the] set of facts’ that were before the state court.” Cullen, 563 9 U.S. at 182 (quoting Williams v. Taylor, 529 U.S. 362, 405, 406 (2000)). If the state decision 10 “‘identifies the correct governing legal principle’ in existence at the time,” a reviewing court must 11 assess whether the decision “‘unreasonably applies that principle to the facts of the prisoner’s 12 case.’” Id. (quoting Willaims, 529 U.S. at 413). An “unreasonable application” of law is 13 “‘different from an incorrect application’” of that law. Harrington v. Richter, 562 U.S. 86, 101 14 (2011) (quoting Williams, 529 U.S. at 410) (emphasis in original). A state-court decision based 15 on a factual determination may not be overturned on habeas review unless the factual 16 determination is “‘objectively unreasonable in light of the evidence presented in the state-court 17 proceeding.’” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (quoting Davis v. Woodford, 18 384 F.3d 628, 638 (9th Cir. 2004)). 19 “[A] federal habeas court may not issue the writ simply because that court concludes in its 20 independent judgment that the relevant state-court decision applied clearly established federal law 21 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 22 U.S. at 411; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 23 U.S. 63, 75 (2003) (“It is not enough that a federal habeas court, in its independent review of the 24 legal question, is left with a firm conviction that the state court was erroneous.” (internal citations 25 and quotation marks omitted.)). “A state court’s determination that a claim lacks merit precludes 26 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state 27 court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 28 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state 1 prisoner must show that the state court’s ruling on the claim being presented in federal court was 2 so lacking in justification that there was an error well understood and comprehended in existing 3 law beyond any possibility for fairminded disagreement.” Id. at 103. 4 The court looks to the last reasoned state court decision as the basis for the state court 5 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 6 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 7 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 8 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 9 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 10 has been presented to a state court and the state court has denied relief, it may be presumed that 11 the state court adjudicated the claim on the merits in the absence of any indication or state-law 12 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 13 overcome by showing “there is reason to think some other explanation for the state court’s 14 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 15 Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not 16 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that 17 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). 18 A summary denial is presumed to be a denial on the merits of petitioner’s claims. Stancle 19 v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). On federal habeas review, the district court 20 reviews the decision of the highest state court to address the merits of the petitioner’s claim in a 21 reasoned decision. See Ylst, 501 U.S. at 803-04. In the absence of a decision from the highest 22 state court, the Court “looks through” to the “last reasoned decision” addressing the particular 23 claim. Id.; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). 24 DISCUSSION 25 Petitioner alleges three grounds for relief: (1) his Fourth Amendment rights were violated 26 by the installation of a Global Positioning System (GPS) tracking device on his vehicle; (2) trial 27 and appellate counsel were ineffective because they failed to raise the Fourth Amendment issue; 28 //// 1 and (3) he was maliciously prosecuted in violation of his Fourteenth Amendment rights. (ECF 2 No. 1.) 3 I. Fourth Amendment – Unlawful Search 4 Petitioner alleges that his Fourth Amendment rights were violated because officers 5 installed a GPS tracking device on his vehicle without obtaining a warrant. (ECF No. 1 at 5.) 6 1. Legal Standards 7 The Supreme Court held in Stone v. Powell, 428 U.S. 465, 481-82 (1976), that federal 8 habeas review of Fourth Amendment claims is barred unless the state did not provide an 9 opportunity for full and fair litigation of those claims. The existence of a state procedure 10 allowing an opportunity for full and fair litigation of Fourth Amendment claims, rather than a 11 defendant’s actual use of those procedures, bars federal habeas consideration of those claims. See 12 Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015); see also Gordon v. Duran, 895 F.2d 610, 13 613-14 (9th Cir. 1990). 14 “The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not 15 whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-Sandolval v. 16 Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (as amended) (citations omitted); see also Newman v. 17 Wengler, 790 F.3d 876, 878-80 (9th Cir. 2015) (per curiam) (holding that the Stone doctrine 18 survived the passage of the AEDPA). 19 California provides criminal defendants with the opportunity to challenge the lawfulness 20 of a search through the procedures of Cal. Penal Code § 1538.5, which allows defendants to move 21 to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment. 22 Gordon, 895 F.2d at 613-14; see also Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). 23 2. Analysis 24 Exhibits attached to the petition that show that trial counsel brought a motion to suppress 25 evidence. (ECF No. 1 at 26-31, 36-43.) Although petitioner’s counsel did not challenge the 26 search on the basis of the installation of the GPS device, petitioner did have a full and fair 27 opportunity to litigate Fourth Amendment claims. Because petitioner had a full and fair 28 opportunity to litigate those claims, he is not entitled to federal habeas review of such a claim. 1 II. Ineffective Assistance of Counsel 2 Petitioner argues his Sixth Amendment rights were violated because both his trial and 3 appellate counsel were ineffective for failing to raise the Fourth Amendment issue petitioner has 4 presented in ground one of his petition. (ECF No. 1 at 7.) Petitioner claims: “Elk Grove police 5 officers . . . trespass[ed] onto private property purposely attaching a warrantless G.P.S. device 6 onto a vehicle registered to the petitioner. As a result of this action the petitioner was arrested 7 charged and convicted.” (ECF No. 1 at 5.) 8 1. Legal Standards 9 To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1) 10 his counsel’s performance was deficient and that (2) the “deficient performance prejudiced the 11 defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is constitutionally 12 deficient if his or her representation “fell below an objective standard of reasonableness” such 13 that it was outside “the range of competence demanded of attorneys in criminal cases.” Id. at 14 687–88 (internal quotation marks omitted). “Counsel’s errors must be ‘so serious as to deprive 15 the defendant of a fair trial, a trial whose result is reliable.’” Harrington v. Richter, 562 U.S. 86, 16 104 (2011) (quoting Strickland, 466 U.S. at 687). 17 A reviewing court is required to make every effort “to eliminate the distorting effects of 18 hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the 19 conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689; see Richter, 562 20 U.S. at 107. Reviewing courts must also “indulge a strong presumption that counsel’s conduct 21 falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. 22 This presumption of reasonableness means that the court must “give the attorneys the benefit of 23 the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel 24 may have had for proceeding as they did.” Pinholster, 563 U.S. at 196 (internal quotation marks 25 and alterations omitted). 26 Prejudice is found where “there is a reasonable probability that, but for counsel’s 27 unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 28 U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the 1 outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” 2 Richter, 562 U.S. at 112. A reviewing court “‘need not determine whether counsel’s performance 3 was deficient before examining the prejudice suffered by the defendant as a result of the alleged 4 deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of 5 sufficient prejudice . . . that course should be followed.’” Pizzuto v. Arave, 280 F.3d 949, 955 6 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds, 7 385 F.3d 1247 (9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177, 8 at *5 (E.D. Cal. Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954). 9 2. State Court 10 The Elk Grove Police Department investigated the robberies and determined that five 11 fingerprints left at one of the locations were a match for petitioner. (ECF No. 1 at 55; ECF No. 12 17 at 11.) Law enforcement then obtained Petitioner’s age, addresses, driver’s license 13 information, and vehicle registration. (ECF No. 1 at 56; ECF No. 17 at 11.) Law enforcement 14 additionally had information regarding petitioner’s arrest history which included a domestic- 15 violence incident involving a rifle, a drive-by shooting, and a prior conviction for assault with a 16 firearm. (ECF No. 17 at 11.) 17 Based on the information they obtained a Ramey2 arrest warrant for petitioner and marked 18 two vehicles linked to petitioner as wanted vehicles in the “Stolen Vehicle System.” (Id.) They 19 also alerted local law enforcement agencies that they were searching for petitioner. 20 Officers attempted to locate petitioner’s vehicles at the Elk Grove apartment complex 21 where petitioner lived at the time. (Id.) Officers observed one of the vehicles through the 22 window of a garage. Officers then looked for the other car at petitioner’s other known address in 23 Sacramento. The car, a Hyundai, was located in the open parking lot of the apartment complex. 24 Officers conducted visual surveillance of both vehicles. (Id.) Then, in early December 25 2012, an Elk Grove detective placed a GPS tracking device on the Hyundai. The device would 26 2 “A ‘Ramey warrant’ is a warrant authorizing the arrest of a suspect within the home before the 27 filing of criminal charges by the district attorney.” Millender v. County of Los Angeles, 620 F.3d 1016, 1021 (9th Cir. 2010), reversed sub nom. on other grounds Messerschmidt v. Millender, 565 28 U.S. 535 (2012) (citing Goodwin v. Superior Court, 90 Cal. App. 4th 215, 218 (2001)). 1 alert officers if the vehicle left the apartment complex. The following morning, the GPS signaled 2 the car was leaving the complex. Officers located the Hyundai approximately an hour later 3 parked outside of the Contra Costa County Probation Department. Detectives located petitioner 4 inside and arrested him. The Hyundai was impounded as evidence. 5 Officers obtained a warrant to search both vehicles and both apartments. Inside the cars, 6 officers located firearms, ammunition, and “‘clothing matching that which defendant wore during 7 the Shell gas station robbery.’” (Id. at 12.) 8 3. Analysis 9 At the outset the court notes that it is petitioner’s burden to show that he is entitled to 10 relief. Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir.), cert. denied, 498 U.S. 960 (1990) (A 11 habeas petitioner has the burden of showing through evidentiary proof that counsel’s performance 12 was deficient); see also Rios v. Rocha, 299 F.3d 796, 813 n.23 (9th Cir. 2002) (rejecting two 13 ineffective assistance of counsel claims based on petitioner’s failure to produce evidence of 14 prejudice). Petitioner’s conclusory statement that his trial attorney “was not functioning as . . . 15 ‘counsel’” fails to show that trial counsel rendered adequate assistance. Moreover, as set forth 16 below, petitioner was not prejudiced by counsel’s failure to raise the issue because the petitioner 17 cannot show that such a motion would have been successful. 18 a. Trial Counsel 19 Petitioner has not specified in the petition, but it appears that petitioner claims his trial 20 counsel was ineffective because he did not argue that the use of the GPS device violated his rights 21 under the Fourth Amendment. Petitioner references United States v. Jones, 565 U.S. 400 (2012),3 22 which the court construes to mean that petitioner’s argument is that counsel was ineffective for 23 failing to argue that the use of the GPS device attached to his car violated his rights under the 24 Fourth Amendment. 25 //// 26

27 3 In Jones, the Court held that attachment of a GPS device to a vehicle along with the use of the device to track the vehicle’s movements is a search within the meaning of the Fourth 28 Amendment. 565 at 948-54. 1 To establish ineffective assistance of counsel based on counsel’s failure to raise a Fourth 2 Amendment issue, petitioner must show that counsel’s performance was deficient and that: (1) 3 the overlooked motion to suppress would have been meritorious, and (2) there is a reasonable 4 probability that the jury would have reached a different verdict absent the excludable evidence. 5 Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). 6 Petitioner cannot show that the jury would have reached a different verdict if counsel had 7 brought a suppression motion based on installation of the GPS device. Petitioner cannot make 8 such a showing because, as respondent has argued, there was no suppressible evidence procured 9 as a result of the use of the GPS device. Officers used the GPS device to locate and arrest 10 petitioner. Thereafter, officers obtained warrants to search the two vehicles and residences 11 associated with petitioner. Additionally, prior to locating petitioner, officers had the following 12 information: “his age, addresses, appearance, prior contacts with law enforcement, driver’s 13 license information, and vehicle registration.” (ECF No. 1 at 56; ECF No. 17 at 11.) 14 While evidence obtained as a result of an unlawful search should be excluded, Mapp v. 15 Ohio, 367 U.S. 643, 655 (1961), defendant himself cannot be suppressed. U.S. v. Crews, 445 16 U.S. 463, 474 (1980). Petitioner has not identified, and the court cannot find any evidence that 17 was obtained through use of the GPS device, that if excluded, would have resulted in a different 18 outcome. Accordingly, petitioner cannot show that he was prejudiced by counsel’s failure to 19 bring a suppression motion based on use of the GPS device. 20 b. Appellate Counsel 21 Petitioner appears to argue that appellate counsel was ineffective for filing a Wende brief4. 22 However, petitioner has not further explained the basis for his claim. To the extent petitioner has 23 simply concluded that his appellate counsel was ineffective simply because he filed a Wende 24 4 When appellate counsel concludes that there are no arguable issues to present on appeal, counsel 25 “files a brief with the appellate court that summarizes the procedural and factual history of the case, with citations of the record. He also attests that he has reviewed the record, explained his 26 evaluation of the case to his client, provided the client with a copy of the brief, and informed the 27 client of his right to file a pro se supplemental brief. He further requests that the court independently examine the record for arguable issues.” Smith v. Robbins, 528 U.S. 259, 265 28 (2000). 1 brief, such an argument is not sufficient to warrant habeas relief. The Supreme Court has held 2 that a habeas petitioner cannot state a claim for ineffective assistance of appellate counsel merely 3 because his attorney filed a brief pursuant to Wende. See Smith, 528 U.S. at 284 (“It is enough to 4 say that the Wende procedure . . . affords adequate and effective appellate 5 review for criminal indigents. Thus, there was no constitutional violation in this case simply 6 because the Wende procedure was used.”). 7 Additionally, appellate counsel does not have a constitutional duty to raise every 8 nonfrivolous issue requested by petitioner. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); 9 Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434 10 n.10 (9th Cir. 1989). Accordingly, petitioner has not shown that appellate counsel was ineffective 11 for failing to raise the GPS issue. 12 III. Malicious Prosecution 13 In ground three of the petition, petitioner states: “In order for the malicious prosecution of 14 an innocent U.S. citizen to take place thr[ough] both a Fourth and Sixth [A]mendment violation. 15 It in itself is proof of a Fourteenth Amendment violation.” (ECF No. 1 at 8.) 16 1. Legal Standards 17 It is not immediately clear that malicious prosecution claims are cognizable on federal 18 habeas review. See Jaime v. Almager, No. SACV 08-cv-0093-JVS (JTL), 2009 WL 2390853, at 19 *15 (C.D. Cal. Aug. 3, 2009) (“[T]he Supreme Court has never found that a malicious 20 prosecution claim is cognizable on habeas review.”). Even assuming that such a claim is 21 cognizable, an essential element of a malicious prosecution claim is the “termination of the prior 22 criminal proceeding in favor of the accused.” See Heck v. Humphrey, 512 U.S. 477, 484 (1994) 23 (citations omitted). 24 Even if a malicious prosecution claim were somehow a cognizable habeas claim, as long 25 as “‘the prosecutor has probable cause to believe that the accused committed an offense defined 26 by statute, the decision whether or not to prosecute, and what charge to file or bring before a 27 grand jury, generally rests entirely in his discretion.’” United States v. Armstrong, 517 U.S. 456, 28 464 (1996) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). The exercise of 1 discretion is not a constitutional violation so long as it is not “‘based upon an unjustifiable 2 standard such as race, religion, or other arbitrary classification.’” Armstrong, 517 U.S. at 464 3 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). 4 2. Analysis 5 “To make out a prima facie case of selective prosecution, Petitioner must show that (1) 6 others similarly situated were not prosecuted in the manner in which Petitioner was prosecuted 7 and (2) Petitioner’s prosecution was based on improper motive. Jaime, 2009 WL 2390853 at *16 8 (citations omitted). 9 Petitioner has not provided sufficient facts to state a prima facie case of selective 10 prosecution. Rather, he has simply concluded that based on the violations he alleged in grounds 11 one and two of the petition, that prosecution of the crimes was improper. However, he has not 12 included any facts from which the court could conclude that the decision to prosecute was based 13 on any improper motive. Accordingly, the court finds that petitioner has failed to show he is 14 entitled to relief on ground three of the petition. 15 IV. Certificate of Appealability 16 The federal rules require a district court that issues an order denying a habeas petition to 17 either grant or deny a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). 18 A judge will grant a certificate of appealability “only if the applicant has made a 19 substantial showing of the denial of a constitutional right,” and the certificate must indicate which 20 issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a district court has rejected the 21 constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: 22 [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment 23 of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 24 As discussed above, this court finds that petitioner has not made “a substantial showing of the 25 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Moreover, petitioner has not 26 demonstrated that “reasonable jurists would find the district court’s assessment of the 27 constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. Therefore, the court will 28 decline to issue a certificate of appealability. wOAoe 2: fPIC oO PIO ee TP Aye AV VI av

1 CONCLUSION 2 For the reasons set forth above, IT IS HEREBY ORDERED that: 3 1. Petitioner’s application for writ of habeas corpus (ECF No. 1) is denied; 4 2. The court declines to issue the certificate of appealability described in 28 U.S.C. § 5 2253; and 6 3. The Clerk of the Court is directed to enter judgment for respondent and close the case. 7 8 Dated: July 22, 2020

10 Mi BARNES ll UNITED STATES MAGISTRATE JUDGE 12 13 14 DB:12 15 || DB1/prisoner-habeas/coop.3039.sub’d 16 17 18 19 20 21 22 23 24 25 26 27 28 13