(HC) Gonzalez v. Fisher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO JACOBO GONZALEZ, No. 1:19-cv-01731-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION 14 FISHER, (Doc. No. 11) 15 Respondent. 16 17 Petitioner Armando Jacobo Gonzalez, a state prisoner proceeding in this action without 18 counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On February 18, 2020, after issuing an order requiring petitioner to show cause in writing 22 why the petition should not be dismissed as untimely filed (Doc. No. 9), to which no response 23 was filed by petitioner, the assigned magistrate judge issued findings and recommendations 24 recommending the petition be dismissed as untimely filed. (Doc. No. 11.) The findings and 25 recommendations were served on petitioner and contained notice that objections were due within 26 fourteen (14) days. (Id.) The time for filing objections has passed and petitioner failed to do so. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 28 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 1 court finds the findings and recommendations to be supported by the record and proper analysis. 2 Here, although the petition indicates that petitioner’s direct appeal became final in “2018”, 3 a search of the docket from the California Supreme Court case number provided, S242837, 4 reveals that the relevant direct appeal became final on August 30, 2017. As a result, this petition, 5 filed more than two years later, is untimely absent a showing that equitable tolling should apply. 6 See 28 U.S.C. § 2244(d). No such showing is apparent from the face of the petition, nor has 7 petitioner provided any grounds for equitable tolling in any other document. 8 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 9 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 10 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 11 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 12 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 13 court issue or deny a certificate of appealability when entering a final order adverse to a 14 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 15 Cir. 1997). 16 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 17 issue a certificate of appealability when “the applicant has made a substantial showing of the 18 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 19 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 20 that) the petition should have been resolved in a different manner or that the issues presented 21 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 22 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 23 In the present case, the court concludes that petitioner has not made the required 24 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 25 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 26 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 27 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 28 a certificate of appealability. 1 Accordingly: 2 1. The findings and recommendations issued on February 18, 2020 (Doc. No. 11) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed as time-barred; 5 3. The court declines to issue a certificate of appealability; and 6 4. The Clerk of Court is directed to assign a district judge to this case for the 7 purposes of closure and to close this case. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ March 17, 2020 Aa oe 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28