(HC) Cuellar v. Bergman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TRAVIS JUSTIN CUELLAR, No. 1:20-cv-00579-NONE-SKO (HC) 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 12 DUPLICATIVE AND SUCCESSIVE PETITION FOR WRIT OF HABEAS 13 v. CORPUS, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 14 (Doc. No. 6) 15 BROOK BERGMAN, Madera County District Attorney, 16 Respondent. 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. On May 5, 2020, the assigned magistrate judge 21 issued findings and recommendations recommending that the pending petition be dismissed as 22 duplicative and successive. (Doc. No. 6.) The findings and recommendations were served upon 23 all parties and contained notice that any objections were to be filed within ten (10) days from the 24 date of service of that order. To date, no party has filed objections. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 27 findings and recommendations are supported by the record and proper analysis. 28 ///// wOAOe LOU UV SE OAR INAS MUO OP vee OY ee 1 In addition, the court declines to issue a certificate of appealability. A state prisoner 2 | seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 3 | his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 4 | US. 322, 335-336 (2003); 28 U.S.C. § 2253. 5 If a court denies a petitioner’s petition, the court may only issue a certificate of 6 | appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 7 | 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 8 || “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 9 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 10 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 11 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 12 In the present case, the court finds that petitioner has not made the required substantial 13 | showing of the denial of a constitutional right to justify the issuance of a certificate of 14 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 15 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 16 | proceed further. Thus, the court DECLINES to issue a certificate of appealability. 17 Accordingly, the court orders as follows: 18 1. The findings and recommendations, filed May 5, 2020 (Doc. No. 6), is ADOPTED 19 | IN FULL; 20 2. The petition for writ of habeas corpus is DISMISSED; 21 3. The Clerk of Court is directed to assign a district judge to this case for the purpose 22 | of closing the case and then to ENTER JUDGMENT AND CLOSE THE CASE; and, 23 4. The Court DECLINES to issue a certificate of appealability. 24 | IT IS SO ORDERED. me □ | Dated: _ June 2, 2020 Vila A Dred 26 UNITED STATES DISTRICT JUDGE 27 28