(HC) Mims v. Burton

Opinion

GEORGE MIMS, No. 2:22-cv-00521-DAD-JDP (HC) Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ROBERT BURTON, AMENDED PETITION FOR FAILURE TO STATE A COGNIZABLE FEDERAL Respondent. HABEAS CLAIM (Doc. Nos. 15, 16)

Petitioner George Mims proceeds pro se and in forma pauperis with a petition 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 August 12, 2022, the assigned magistrate judge issued findings and recommendations recommending that the amended petition before the court be dismissed for failure to state a cognizable claim for federal habeas relief because the sole claim asserted therein was that the trial court misapplied state sentencing law.1 (Doc. No. 16 at 1–2.) Those findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within fourteen (14) days from the date of service. (Id. at 2.) On September 6, 2022,

1 On August 25, 2022, this case was reassigned to the undersigned district judge. (Doc. No. 17.) petitioner filed objections to the pending findings and recommendations. (Doc. No. 18.) Respondent filed no response to those objections. In his objections to the pending findings and recommendations petitioner merely submits a copy of a petition for writ of habeas corpus that he apparently submitted to the California Supreme Court in March of 2022. In that petition he appeared to argue that the state trial court’s reliance on California’s Three Strikes Law in imposing his current sentence in effect violated his plea agreements in the earlier state cases that were counted as strikes. (Doc. No. 18 at 8.) This argument provides no basis upon which to question or reject the pending findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, and considered petitioner’s objections, the court finds the findings and recommendations to be supported by the record and proper analysis. Additionally, the court declines to issue a certificate of appealability. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see, e.g., Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller- El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). In determining these issues, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Miller-El, 537 U.S. at 336. When a district court dismisses a petition on procedural grounds, the reviewing court should apply a two-step analysis, and a certificate of appealability should issue if the petitioner 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. Slack, 529 U.S. at 478. Here, reasonable jurists would not find the court’s decision to dismiss the pending petition due to its failure to assert a cognizable federal habeas claim to be debatable or conclude that the petition should proceed further. Thus, the court declines to issue a certificate of appealability. Accordingly, 1. The findings and recommendations filed on August 12, 2022 (Doc. No. 16) are adopted in full; 2. The amended petition (Doc. No. 15) is dismissed for failure to state a cognizable claim for federal habeas relief; 3. The court declines to issue a certificate of appealability; and 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: _Mareh 1, 2023 □□□ A. 2, eel UNITED STATES DISTRICY JUDGE