(HC) Hiracheta v. Clark ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY HIRACHETA, Case No. 1:19-cv-00988-DAD-JDP (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION 14 KEN CLARK, (Doc. No. 4) 15 Respondent. 16 17 Petitioner Anthony Hiracheta is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a magistrate judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 1, 2019, the assigned magistrate judge issued findings and recommendations 21 recommending that the petition be dismissed for lack of jurisdiction. (Doc. No. 4.) Specifically, 22 the magistrate judge found that the pending petition is a second or successive petition and that 23 petitioner has not obtained leave from the Ninth Circuit Court of Appeals to proceed with such a 24 petition. (Id. at 2–3.) The findings and recommendations were served on petitioner and contained 25 notice that any objections thereto were to be filed within fourteen (14) days after service. 26 (Id. at 4.) To date, petitioner has not filed objections, and the time to do so has since passed. 27 ///// 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 court finds the findings and recommendations to be supported by the record and proper analysis. 4 Finally, the court declines to issue a certificate of appealability. A petitioner seeking writ 5 of habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. 6 See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a 7 petitioner’s petition, the court may only issue a certificate of appealability when a petitioner 8 makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 9 Where, as here, the court denies habeas relief on procedural grounds without reaching the 10 underlying constitutional claims, the court should issue a certificate of appealability “if jurists of 11 reason would find it debatable whether the petition states a valid claim of the denial of a 12 constitutional right and that jurists of reason would find it debatable whether the district court was 13 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present 14 case, the court finds that petitioner has not made the required substantial showing of the denial of 15 a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists 16 would not find the court’s determination that the pending petition is a second or successive 17 petition to be debatable, wrong, or deserving of encouragement to proceed further. Thus, the 18 court declines to issue a certificate of appealability. 19 For these reasons, 20 1. The findings and recommendations issued on August 1, 2019 (Doc. No. 4) are 21 adopted in full; 22 2. This petition for writ of habeas corpus is dismissed for lack of jurisdiction because 23 it is an unauthorized second or successive petition; 24 3. The court declines to issue a certificate of appealability; and 25 ///// 26 ///// 27 ///// 28 ///// 1 4. The Clerk of the Court is directed to enter judgment in favor of respondent and 2 close this case. 3 4 IT IS SO ORDERED. ~ ‘de 5 Dated: _ November 6, 2019 te 1 Joe ‘ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28