Manzano v. Lockyer

3:06-cv-02077-JAH-WMC | S.D. Cal. | Oct 17, 2008

Case 3:06-cv-02077-JAH-WMC Document 25 Filed 10/17/08 PageID.157 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA FRANCISCO MANZANO, ) ) ) ) ) ) ) ) ) ) ) Civil No. 06cv2077 JAH(WMc) Petitioner, ORDER DENYING PETITIONER’S APPLICATION FOR CERTIFICATE OF APPEALABILITY v. JAMES E. TILTON, Secretary of California Department of Corrections and Rehabilitation,

Respondent. Petitioner, a state prisoner appearing pro se , filed petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in state court on the sole ground that his sentence violates the prohibition cruel and unusual punishments guaranteed by the state and federal constitutions. Pursuant to 28 U.S.C. § 636(b)(1)B) and Local Rule HC.2(a), the Honorable William McCurine, Jr., United States Magistrate Judge, issued a report and recommendation recommending the petition be denied in its entirety. Because petitioner, in his objections to the magistrates judge’s report, petitioner claimed he had filed a traverse which had not been addressed in the report, this Court remanded the matter to the magistrate judge for submission of an amended report addressing the omitted traverse. Judge McCurine subsequently issued an amended report, again recommending the petition be denied in its entirety. No objections were filed to the amended report. This Court, after a thorough review of the record, adopted the amended report in toto and denied the petition in its entirety.

06cv2077 Case 3:06-cv-02077-JAH-WMC Document 25 Filed 10/17/08 PageID.158 Page 2 of 2 On October 14, 2008, petitioner filed a notice of appeal which included an applicationt for a certificate of appealability. A certificate of appealability is authorized “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show : (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022" date_filed="2000-08-04" court="9th Cir." case_name="Joe Leonard Lambright v. Terry Stewart">220 F.3d 1022, 1024-25 (9th Cir. 2000)(citing Slack v. McDaniel, 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. 473 (2000) and Barefoot v. Estelle, 463 U.S. 880" date_filed="1983-07-06" court="SCOTUS" case_name="Barefoot v. Estelle">463 U.S. 880 (1983)).

Here, petitioner appeals this Court’s order denying the petition for writ of habeas corpus. In denying the petition, this Court agreed with the magistrate judge’s determination that petitioner’s sentence was not grossly disproportionate to the crimes charged considering petitioner’s long history of convictions on both violent and non- violent crimes and thus, the state court’s affirmation of petitioner’s conviction was neither contrary to, nor an unreasonable application of clearly established Supreme Court law. See Williams v. Taylor, 529 U.S. 362" date_filed="2000-04-18" court="SCOTUS" case_name="Williams v. Taylor">529 U.S. 362, 405-05 (2000); Lockyer v. Andrade, 538 U.S. 63" date_filed="2003-03-05" court="SCOTUS" case_name="Lockyer v. Andrade">538 U.S. 63, 73 (2003); Clark v. Murphy, 331 F.3d 1062" date_filed="2003-06-10" court="9th Cir." case_name="Billy Russell Clark v. Tim Murphy">331 F.3d 1062, 1067 (9th Cir. 2003). This Court finds that a certificate of appealability is not warranted in this instance because the denial of petitioner’s claims of cruel and unusual punishment under the circumstances here is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Lambright, 220 F.3d 1022" date_filed="2000-08-04" court="9th Cir." case_name="Joe Leonard Lambright v. Terry Stewart">220 F.3d at 1024-25. Accordingly, this Court DENIES petitioner’s application for a certificate of appealability. DATED: October 17, 2008

JOHN A. HOUSTON United States District Judge 2 06cv2077