(HC) Heu v. People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNY HEU, Case No. 1:19-cv-00083-DAD-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR LACK OF JURISDICTION AND DECLINING TO ISSUE A 14 PEOPLE OF THE STATE OF CERTIFICATE OF APPEALABILITY CALIFORNIA, 15 (Doc. No. 8) Respondent. 16 17 18 Petitioner Johny Heu is a state prisoner proceeding pro se with a petition for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 8, 2019, the assigned magistrate judge issued findings and 22 recommendations, recommending dismissal of the habeas petition for lack of jurisdiction. (Doc. 23 No. 8.) The findings and recommendations were served upon all parties and contained notice that 24 any objections thereto were to be filed within fourteen (14) days from the date of service of the 25 order. 26 On November 25, 2019, petitioner filed objections to the magistrate’s findings and 27 recommendations, arguing that habeas relief should be granted under the Eighth and Fourteenth 28 Amendments of the U.S. Constitution. (Doc. No. 9). In those objections, plaintiff fails to dispute 1 the magistrate judge’s finding that the court lacks jurisdiction over habeas petitions brought 2 pursuant to § 2254 that challenge only a restitution order. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 5 objections, the court concludes that the findings and recommendations are supported by the 6 record and proper analysis. 7 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 8 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 9 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 10 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 11 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 12 court issue or deny a certificate of appealability when entering a final order adverse to a 13 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 14 Cir. 1997). 15 If, as here, a court denies a petition for a writ of habeas corpus, the court may only issue a 16 certificate of appealability when “the applicant has made a substantial showing of the denial of a 17 constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must 18 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 19 should have been resolved in a different manner or that the issues presented were ‘adequate to 20 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 21 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 22 In the present case, the court concludes that petitioner has not made the required 23 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 25 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 26 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 27 a certificate of appealability. 28 ///// 1 Accordingly: 2 1. The findings and recommendations issued on November 8, 2019 (Doc. No. 8) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed for lack of 5 jurisdiction; 6 3, The Clerk of the Court is directed to close this case; and 7 4. The court declines to issue a certificate of appealability. 8 | IT IS ORDERED. a 9 Li. wh F Dated: _ January 13, 2020 See 1" S98 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28