(HC) Vasquez v. Sullivan

Opinion

TONY VASQUEZ, No. 1:19-cv-00811-DAD-SKO Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING Respondent. (Doc. No. 21) Petitioner Tony Vasquez is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. Nos. 1, 6.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On December 17, 2019, the assigned magistrate judge issued findings and recommendations, recommending that each of petitioner’s ten claims for federal habeas relief be rejected. (Doc. No. 21.) The pending findings and recommendations were served on petitioner with notice that any objections thereto were to be filed within thirty (30) days of service. (Id. at 60.) On January 21, 2020, the petitioner’s objections were timely docketed. (Doc. No. 22.) Therein, petitioner objected categorically to, and denies as untrue, the sections of the findings and recommendations addressing his claims regarding: 1) pretrial identification; 2) instructional error; 3) ineffective assistance of counsel; 4) bifurcation; 5) admission of evidence; 6) prosecutorial misconduct; 7) exclusion of evidence; 8) sentencing error; and 9) insufficiency of the evidence. (Id. at 1–2.) Petitioner did not specifically object to the tenth section of the findings and recommendations addressing cumulative error. Petitioner further objects on the basis that the findings and recommendations did not “address the Due Process rights under CA.[] Const. Art. 1 Sec. 32(a)(2),” which he asserts eliminates the three-strikes law or any enhancements, such as those based upon gang or prior prison terms, and should be applied retroactively to his sentence. (Id. at 2–4.) Article 1, section 32(a)(2) of the California Constitution1 cited by petitioner describes the ability of the Department of Corrections and Rehabilitation to award credits for good behavior as well as for participation in approved rehabilitative or educational programming. The section was added by the Public Safety and Rehabilitation Act of 2016, which amended California’s parole system to conform with the process which had been implemented by order of a three judge panel in the joined cases of Coleman v. Brown and Plata v. Brown, No. 2:90-cv-0520-LKK-DAD (PC) that required California to reduce its prison population. See Laurie Levenson & Judge Alex Ricciardulli, Proposition 57: Public Safety and Rehabilitation Act of 2016, Cal. Crim. Pro. § 31:7 (Dec. 2020); Nonviolent Offender Parole Review Process for Determinately-Sentenced Inmates, Cal. Dep’t of Corrections and Rehabilitation, https://www.cdcr.ca.gov/bph/nvopr-overview/ (last visited Jan. 19, 2021). Petitioner appears to argue that this section of the California Constitution requires a change to his sentence. (Doc. No. 22 at 3–4.) However, this section does not apply to sentencing, it instead functions to expand the availability of early release to include those serving time for nonviolent felony offenses in the California state prison system. Cal. Const. art. I, § 32(a)(1). Because this has no bearing on the pending claims and raises no constitutional or

1 This section provides: “SEC. 32. (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law: . . . (2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.” Cal. Const. Art. I, sec. 32(a)(2). federal issue that requires a different result, the pending petition for federal habeas relief must be denied. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis. Having found that petitioner is not entitled to habeas relief, the court now turns to whether acertificate of appealability should issue. Rule 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). The court may only issue a certificate of appealability when “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made such a showing. Therefore, the court declines to issue a certificate of appealability. Accordingly, 1. The findings and recommendations issued on December 17, 2019 (Doc. No. 21) are adopted in full; 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 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. me □ Dated: _ January 19, 2021 Yh AL ae UNITED STATES DISTRICT JUDGE