1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VANNA SISOUNTHONE, No. 2:18-cv-03181-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 ROBERT NEUSCHMID, PETITION SEEKING FEDERAL HABEAS RELIEF ON THE MERITS 15 Respondent. (Doc. Nos. 1, 45) 16

17 18 Petitioner Vanna Sisounthone is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to

. The matter was referred to 20 a United States Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. 21 On June 30, 2025, the assigned magistrate judge issued findings and recommendations 22 recommending that petitioner’s federal habeas petition, proceeding on a single claim of 23 constitutional error at trial, be denied on the merits. (Doc. No. 45.) In those findings and 24 recommendations, the magistrate judge carefully examined petitioner’s sole remaining claim for 25 federal habeas relief—that the prosecutor’s questioning of witnesses and use of surveillance 26 videos at his trial in state court improperly suggested his identification as the perpetrator of the 27 charged crimes in violation of his right to due process. (Id. at 4–11.) The magistrate judge 28 concluded that, under the standard of review applicable under

(d)(1), petitioner 1 had failed to show that the state court decision rejecting this claim for relief was contrary to, or an 2 unreasonable application of, clearly established law as determined by the Supreme Court, or 3 resulted in a decision based on an unreasonable determination of the facts.1 (Id. at 10.) Indeed, 4 the magistrate judge concluded that even were petitioner’s claim to be subject to de novo review, 5 without the Antiterrorism and Effective Death Penalty Act’s required deference, no constitutional 6 error had been shown, noting the extensive evidence supporting the jury’s conclusion as to 7 identity and observing that when the record was considered as a whole “the basic fairness of 8 petitioner’s trial is apparent.” (Id. at 10–11.) 9 The pending findings and recommendations were served upon the parties and contained 10 notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. 11 at 42.) Neither party filed objections to the pending findings and recommendations and the time 12 in which to do so has passed. 13 In accordance with the provisions of

(b)(1)(C), the court has conducted a 14 de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 15 and recommendations to be supported by the record and by proper analysis. 16 Having concluded that the pending petition must be denied, the court also declines to issue 17 a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute right to 18 appeal; he may appeal only in limited circumstances. See

; Miller-El v. 19 Cockrell,

(2003). If a court denies a petitioner’s petition, the court may 20 only issue a certificate of appealability when a petitioner makes a substantial showing of the 21 denial of a constitutional right.

(c)(2). If a court denies a habeas petition on the 22 merits, the court may only issue a certificate of appealability if “jurists of reason could disagree 23 with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists could 24 conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller- 25 El,

; see also Slack v. McDaniel,

(2000). While the petitioner 26 1 The undersigned notes that the magistrate judge declined to adopt respondent’s argument that 27 petitioner’s sole remaining claim for habeas relief was procedurally defaulted due to his trial counsel’s failure to object at trial and instead bypassed the procedural default issue by reaching 28 the merits of petitioner’s claim. (Doc. No. 45 at 9.) The undersigned too adopts this approach. 1 || is not required to prove the merits of his case, he must demonstrate “something more than the 2 || absence of frivolity or the existence of mere good faith on [her] .. . part.” Miller-El,

| 338. In the present case, the court concludes that reasonable jurists would not find the court’s 4 | determination that the petition should be denied to be debatable or wrong, or that the issues 5 || presented are deserving of encouragement to proceed further. Petitioner has not made the 6 | required substantial showing of the denial of a constitutional right. Therefore, the court will 7 | decline to issue a certificate of appealability. 8 Accordingly, 9 1. The findings and recommendations issued on June 30, 2025 (Doc. No. 45) are 10 ADOPTED in full; 11 2. The petition for writ of habeas corpus (Doc. No. 1) is DENIED on the merits; 12 3. The court DECLINES to issue the certificate of appealability referenced in 28 13 U.S.C § 2253; and 14 4. The Clerk of the Court is DIRECTED to close this action. 15 ITIS SO ORDERED. © Dated: September 9, 2025 Dak A. 2d, sy 17 DALE A. DROZD UNITED STATES DISTRICT JUDGE

19 20 21 22 23 24 25 26 27 28