Opinion
Case No. 1:18-cv-00523-NONE-JDP
07-30-2020
GASPAR DRAKE, Petitioner, v. J. GASTELO, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION
(Doc. No. 22)
Petitioner Gaspar Drake, a state prisoner proceeding without counsel in this action, seeks federal habeas corpus relief under 28 U.S.C. § 2254. (Doc. No. 1.) In 2015, petitioner was convicted by a Kings County Superior Court jury of battery on a non-prisoner and obstructing a correctional officer in the performance of his duties. (Doc. No. 16 at 11-16.) Petitioner seeks relief on the ground that at his trial on those charges the testimony of two witnesses necessary to his defense was improperly excluded. (Id. at 24.) This action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 30, 2020, the assigned magistrate judge issued findings and recommendations, recommending that the pending petition be denied because he had failed to demonstrate that the exclusion of the testimony of the two inmate witnesses at his trial resulted in him being denied his constitutional right to due process. (Doc. No. 22.) On April 24, 2020, petitioner filed objections to the findings and recommendations. (Doc. No. 23.) In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including petitioner's objections, 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 a certificate of appealability should issue. 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. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). In addition, 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). If, as here, a court dismisses a petition for a writ of habeas corpus, 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)). In the present case, the court concludes that petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. The court therefore declines to issue a certificate of appealability.
Accordingly:
1. The findings and recommendations issued on March 30, 2020 (Doc. No. 22) are adopted;///// ///// ///// /////
2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed;
3. The court declines to issue a certificate of appealability; andIT IS SO ORDERED.
4. The Clerk of Court is directed to assign a district judge to this case for the purposes of closure and to close this case.
Dated: July 30 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE