(HC) Valencia Pineda v. Allison ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS ALBERTO VALENCIA PINEDA, No. 1:19-cv-00260-DAD-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 KATHLEEN ALLISON, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 15 Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. No. 28) 17 18 Petitioner Luis Alberto Valencia Pineda is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On February 14, 2020, the assigned magistrate judge issued the pending findings and 23 recommendations, recommending that the petition be dismissed as untimely. (Doc. No. 28.) 24 Specifically, the magistrate judge found that the instant petition was filed after the applicable one- 25 year statute of limitations, and that petitioner had not shown that he is entitled to equitable tolling. 26 (Id.) On June 18, 2020, after requesting and receiving three extensions of time to file objections 27 (Doc. Nos. 29–34), petitioner filed his objections to the pending findings and recommendation. 28 (Doc. No. 35.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court holds the findings and recommendation to be supported by the record and 4 proper analysis. 5 In his objections, petitioner does not dispute that the instant petition was filed after the 6 applicable one-year statute of limitations had expired. Rather, he reiterates the same argument 7 that the magistrate judge considered and rejected in issuing the pending findings and 8 recommendations: namely, that he is entitled to equitable tolling of the statute of limitations. In 9 this regard, petitioner contends that 10 the lack of an adequate record, the lack of notice, having to rely on sluggish or unproductive jail-house lawyers, the prison law library’s 11 failure to provide Spanish language books or Spanish-speaking clerks to assist [him], prior Appellate Counsel’s failure to inform 12 [him] of the AEDPA Statute of limitation, and the fact the has no working knowledge of the law should be considered together. That 13 is the only way to lend a fair assessment of petitioner’s equitable tolling claims. 14 15 (Doc. No. 35 at 5–6.) Each of these arguments, however, were addressed and rejected by the 16 magistrate judge, who found that: (1) the alleged failure of petitioner’s appellate counsel to 17 inform him of the one-year statute of limitations, his lack of access to the record, and his reliance 18 on jailhouse lawyers did not constitute extraordinary circumstances warranting equitable tolling 19 of the applicable statute of limitations; and (2) petitioner failed to establish that he acted diligently 20 in pursuing his habeas claims. (Doc. No. 28 at 5–10.) Petitioner’s objections therefore do not 21 meaningfully dispute the magistrate judge’s findings.1 22 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 23 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 24 1 In his objections, petitioner reiterates his requests for an evidentiary hearing with respect to 25 whether he is entitled to equitable tolling and appointment of counsel. (Doc. No. 35 at 7.) The magistrate judge correctly concluded that an evidentiary hearing is not warranted in this action 26 and neither is the appointment of counsel. (See Doc. No. 28 at 11.) Petitioner’s renewed requests 27 in these regards provide no new basis for the requests, and accordingly both requests will be denied for the same reasons articulated by the magistrate judge in the pending findings and 28 recommendations. 4:40 UVM EU MAR SMUT PI eter TOY VMI 1 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 2 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 3 | § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 4 | the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 5 | of reason would find it debatable whether the petition states a valid claim of the denial of a 6 | constitutional right and that jurists of reason would find it debatable whether the district court was 7 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 8 | procedural bar is present and the district court is correct to invoke it to dispose of the case, a 9 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 10 | that the petitioner should be allowed to proceed further.” Jd. In the present case, the court finds 11 | that reasonable jurists would not find the court’s determination that the petition should be 12 | dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, 13 | the court declines to issue a certificate of appealability. 14 Accordingly: 15 1. The findings and recommendation issued on February 14, 2020 (Doc. No. 28) are 16 adopted in full; 17 2. Respondent’s motion to dismiss (Doc. No. 12) is granted; 18 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 19 4. The court declines to issue a certificate of appealability; and 20 5. The Clerk of Court is directed to close the case. 21 | IT IS SOORDERED. me □ ** 1 Dated: _ July 21, 2020 Yole A Lara 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28