(HC) Delgado, Jr. v. Lake ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN ALBERTO DELGADO, JR., No. 1:19-cv-00119-DAD-JDP 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 14 S. LAKE, PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY, AND DIRECTING CLERK OF COURT TO CLOSE 16 CASE 17 (Doc. No. 5) 18 19 20 Petitioner Ruben Alberto Delgado, Jr. is a federal prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was 22 referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On August 27, 2019, the assigned magistrate judge issued findings and recommendations 24 recommending that the petition be dismissed for lack of jurisdiction. (Doc. No. 5.) The findings 25 and recommendations were served on petitioner and contained notice that any objections thereto 26 were to be filed within fourteen days after service. (Id. at 4.) To date, petitioner has not filed 27 objections, and the time for doing so has passed. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 2 | court has conducted a de novo review of the case. Having carefully reviewed the entire file, the 3 | court holds the findings and recommendations to be supported by the record and proper analysis. 4 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 5 | acertificate of appealability should issue. A petitioner seeking writ of habeas corpus has no 6 | absolute right to appeal; he may appeal only in limited circumstances. Miller-El v. Cockrell, 537 7 1 US. 322, 335-36 (2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on 8 | procedural grounds without reaching the underlying constitutional claims, the court should issue a 9 | certificate of appealability “if reasonable jurists could debate whether (or, for that matter, agree 10 || that) the petition should have been resolved in a different manner or that the issues presented 11 || were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 12 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 13 | court finds that reasonable jurists would not find the court’s determination that the petition should 14 | dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, 15 | the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on August 27, 2019 (Doc. No. 5) are 18 adopted in full; 19 2. The petition for writ of habeas corpus is dismissed for lack of jurisdiction; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to close this case. 22 | IT IS SO ORDERED. me □ Dated: _ January 13, 2020 a aL, A 5 anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28