(HC) Buensalida v. Warden Lake ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED BUENSALIDA, No. 1:19-cv-01347-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 LAKE, Warden of USP Atwater, PETITION FOR A WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 7) 16 17 18 Petitioner Alfred Buensalida is a federal prisoner proceeding pro se with a petition for a 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 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 February 10, 2020, the assigned magistrate judge issued findings and 22 recommendations, recommending dismissal of the petition for federal habeas relief due to lack of 23 jurisdiction. (Doc. No. 7.) The findings and recommendations were served upon all parties and 24 contained notice that any objections thereto were to be filed within fourteen (14) days from the 25 date of service of the order. No objections have been filed and the time to do so has now passed. 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 the 28 findings and recommendations are supported by the record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 2 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 3 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 4 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 5 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 6 court issue or deny a certificate of appealability when entering a final order adverse to a 7 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 8 Cir. 1997). 9 If, as here, a court denies a petition for a writ of habeas corpus, the court may only issue a 10 certificate of appealability when “the applicant has made a substantial showing of the denial of a 11 constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must 12 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 13 should have been resolved in a different manner or that the issues presented were ‘adequate to 14 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 15 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 16 In the present case, the court concludes that petitioner has not made the required 17 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 18 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 19 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 20 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 21 a certificate of appealability. 22 Accordingly: 23 1. The findings and recommendations issued on February 10, 2020 (Doc. No. 7) are 24 adopted in full; 25 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 26 ///// 27 ///// 28 ///// 1 3. The court declines to issue a certificate of appealability; and 2 4. The Clerk of the Court is directed to close this case. 3 | IT IS SO ORDERED. = ‘ Dated: _ March 17, 2020 i aL, Al 5 a 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28