(HC) Palmer v. Atchley

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 MARLON PALMER, No. 2:19-cv-1999 KJM KJN P 12 Petitioner, 13 v. ORDER 14 TAMMY FOSS, Warden, 15 Respondent. — 16 — 17 Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas 18 corpus under 28 U.S.C. § 2254 . The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 20 On November 18, 2021, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. F. & R., 23 ECF No. 19. Petitioner filed objections to the findings and recommendations. Obj., ECF No. 25. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. For the reasons below, the court adopts the 26 findings and recommendations. 27 Here, as set forth in the magistrate judge’s findings and recommendations, petitioner 28 claims (1) he was denied his constitutional right against self-incrimination when the prosecutor 1 referenced petitioner’s failure to present evidence of his innocence during the closing argument 2 and (2) was denied the right to a fair trial when the state trial court excluded evidence of third3 party culpability. F. & R. at 1. The magistrate judge recommends denying both claims. Id. 4 Petitioner argues neither claim should be denied. See generally Obj. Having considered the 5 petitioner’s objections, the court finds the denial of petitioner’s self-incrimination claim was 6 proper, as “the state appellate court’s denial of petitioner’s Griffin claim did not involve a 7 decision that was contrary to, or an unreasonable application of, Supreme Court precedent.” 8 F. & R. at 30 (citing 28 U.S.C. § 2254 (d)). 9 The third-party culpability claim is also denied. Although the court acknowledges the 10 magistrate judge misread the facts of the Ninth Circuit decision in Lunbery v. Hornbeak, 11 see F. & R. at 13–14 (citing 605 F.3d 754 , 760–61 (9th.Cir. 2010)), the court still finds the state 12 court’s decision was not contrary to, or an unreasonable application of, clearly established 13 Supreme Court authority, 28 U.S.C. § 2254 (d). As the magistrate judge correctly concluded: — 14 — Petitioner’s proffer would have only shown that neither Luc nor Truong were 15 present at the victim’s store on the date of the murder despite their typical presence, that Luc stated a belief that his brother had been beaten to death 16 rather than strangulation, and that Truong owed a debt to Hoa where there existed documentary evidence tending to show the debt had been paid but 17 in the absence of corroboration by a third individual, and that Truong did not remember whether he had spoken with [Hoa] on the telephone on the date 18 of the murder. At most, the evidence provided opportunity as to Luc and Truong, and motive as to Truong. But it did not sufficiently link either to 19 Hoa’s murder. 20 F. & R. at 21 (citing Holmes v. South Carolina, 547 U.S. 319, 327 (2006)). 21 In his objections, for the first time, petitioner argues the cumulative effect of the two 22 alleged errors necessitates his obtaining habeas relief, see Obj. at 10–11, but this claim was not 23 considered by the state court and has not been exhausted, see generally Pet. Ex. A, ECF No. 1; 24 see also 28 U.S.C. § 2254 (c) (“An applicant shall not be deemed to have exhausted the remedies 25 available in the courts of the State, within the meaning of this section, if he has the right under the 26 law of the State to raise, by available procedure, the question presented.”). In any event, as noted, 27 this court finds each error alleged by petitioner does not meet the stringent requirements for 28 habeas relief, and even when considering the alleged errors together, they did not have a 1 || “substantial and injurious effect or influence on the jury’s verdict.” Parle v. Runnels, 505 F.3d 2 || 922, 927 (9th Cir. 2007). 3 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court has 4 || considered whether to issue a certificate of appealability. Before petitioner can appeal this 5 || decision, a certificate of appealability must issue. See 28 U.S.C. § 2253 (c); Fed. R. App. P. 22(b). 6 || Where the petition is denied on the merits, a certificate of appealability may issue under 28 7 || US.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 8 | constitutional right.” 28 U.S.C. § 2253 (c)(2). The court must either issue a certificate of 9 || appealability indicating which issues satisfy the required showing or must state the reasons why 10 || sucha certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 11 | procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 12 | jurists of reason would find it debatable whether the district court was correct in its procedural 13 | ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 14 || claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 15 | 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 478 (2000)). For the reasons set forth in the 16 || magistrate judge’s findings and recommendations, the court finds issuance of a certificate of 17 || appealability is not warranted in this case. 18 Accordingly, the court adopts the magistrate judge’s findings and recommendations with 19 | the clarification provided above. 20 IT IS HEREBY ORDERED that: 21 1. The findings and recommendations filed November 18, 2021, ECF No. 19, are 22 || adopted; 23 2. Petitioner’s application for a writ of habeas corpus is denied; 24 3. The clerk of court is directed to close this case; and 25 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 26 | § 2253. 27 || DATED: January 12, 2023. [\ (] 28 l soe / f os CHIEF ONT] ED STATES DISTRICT JUDGE