(HC) Lopez v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISRAEL LOPEZ, No. 1:19-cv-00643-LJO-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 19) 13 ORDER DENYING PETITION FOR WRIT 14 v. OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE 16 CASE STU SHERMAN, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 18 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2254. On November 1, 2019, the Magistrate Judge 22 assigned to the case issued Findings and Recommendation to deny the petition on its merits. 23 (Doc. No. 19.) This Findings and Recommendation was served upon all parties and contained 24 notice that any objections were to be filed within twenty-one days from the date of service of that 25 order. To date, no party has filed objections. 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 27 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 28 the Magistrate Judge’s Findings and Recommendation is supported by the record and proper 1 analysis. 2 In addition, the Court declines to issue a certificate of appealability. A state prisoner 3 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 4 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 5 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 6 appealability is 28 U.S.C. § 2253, which provides as follows: 7 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit 8 in which the proceeding is held. 9 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person 10 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 11 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 12 not be taken to the court of appeals from— 13 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 16 made a substantial showing of the denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 18 If a court denies a petitioner’s petition, the court may only issue a certificate of 19 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 20 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 21 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 22 been resolved in a different manner or that the issues presented were ‘adequate to deserve 23 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 24 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 25 In the present case, the Court finds that Petitioner has not made the required substantial 26 showing of the denial of a constitutional right to justify the issuance of a certificate of 27 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 28 1 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 2 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 3 Accordingly, the Court orders as follows: 4 1. The Findings and Recommendations, filed November 1, 2019 (Doc. No. 19), is 5 ADOPTED IN FULL; 6 2. The petition for writ of habeas corpus is DENIED WITH PREJUDICE; 7 3. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and, 8 4. The Court DECLINES to issue a certificate of appealability. 9 This order terminates the action in its entirety. 10 IT IS SO ORDERED. 11 12 Dated: December 3, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28