(HC) Acedo v. Gastello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ACEDO, No. 1:19-cv-00070-DAD-SKO (HC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR A CERTIFICATE APPEALABILITY 14 JOSIE GASTELLO, Warden, (Doc. No. 23) 15 Defendant. 16 17 Plaintiff Daniel Acedo is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 29, 2019, the court adopted in full the June 3, 2019 findings and 21 recommendations issued by the assigned magistrate judge. (Doc. Nos. 17, 19.) In that order 22 adopting the findings and recommendations, the court denied Acedo’s petition for federal habeas 23 relief due to his failure to exhaust his claims and because his petition, in any event, did not state a 24 cognizable claim for federal habeas relief. (Doc. No. 19 at 1–2.) The court also declined to issue 25 a certificate of appealability. (Id. at 2–3.) 26 On May 27, 2020, plaintiff moved for reconsideration under Federal Rule of Civil 27 Procedure 60(b). (Doc. No. 21.) On June 4, 2020, the court denied the motion for 28 reconsideration because Acedo failed to state a cognizable claim for federal habeas relief. (Doc. 1 No. 17 at 3–4.) The court also concluded that, in any event, Acedo had failed to identify any 2 evidence that would vindicate his claims, and that he neglected to explain why any such evidence 3 was unavailable to him when he first initiated this action. (Doc. No. 17 at 3–4.) Simply claiming 4 that he found unspecified evidence “after reviewing records” does not suffice under Local Rule 5 230(j). 6 On June 22, 2020, petitioner filed a motion for a certificate of appealability. A prisoner 7 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 8 his petition, as an appeal is only allowed under certain circumstances. See 28 U.S.C. § 2253; 9 Miller-El v. Cockrell, 537 U.S. 322, 335–336 (2003). In addition, Rule 11 of the Rules 10 Governing Section 2254 Cases requires that a district court issue or deny a certificate of 11 appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22- 12 1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). 13 If, as here, a court had denied the petition for a writ of habeas corpus, the court may only 14 issue a certificate of appealability when “the applicant has made a substantial showing of the 15 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 16 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 17 that) the petition should have been resolved in a different manner or that the issues presented 18 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 19 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). While the petitioner is not 20 required to prove the merits of his case, he must demonstrate “something more than the absence 21 of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. 22 But, as before, the court again 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. Petitioner’s arguments amount to a either a restatement of his earlier arguments or 25 a disagreement with the court’s analysis, neither of which indicate manifest injustice. And 26 contrary to petitioner’s argument that the court denied habeas relief on purely procedural grounds, 27 the court emphasizes that his request to have his RVRs be expunged is not a cognizable federal 28 habeas claim. (Doc. No. 17 at 4.) Petitioner simply failed to “allege a violation of a wASe 2 LDV □□□ SINR MVOC oI ive er TOY VV VIG 1 | constitutional right [and] show how his custody is in violation of the Constitution or federal law.” 2 | Ud.) Reasonable jurists would not find the court’s determination that petitioner is not entitled to 3 | federal habeas corpus relief wrong or debatable, and they would not conclude that petitioner is 4 | deserving of encouragement to proceed further. The court therefore again declines to issue a 5 | certificate of appealability. 6 Accordingly, petitioner’s motion for a certificate of appealability (Doc. No. 23) is denied. 7 | ITIS SO ORDERED. si am 8 Li. wh F Dated: _ July 1, 2020 wea rE = 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28