(HC) Soto v. Atchley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA ANDREW SOTO, Case No. 1:20-cv-00671-AWI-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 ATCHLEY, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (ECF No. 14) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. On May 29, 2020, the Magistrate Judge issued Findings and 20 Recommendation that recommended dismissing the petition as an unauthorized successive 21 petition. (ECF No. 14). The Findings and Recommendation were served Petitioner and contained 22 notice that any objections were to be filed within thirty (30) days of the date of service of that 23 order. To date, no objections have been filed, and the time for doing so has passed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 25 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the Findings and Recommendation is supported by the record and proper analysis. 27 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 1 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining 2 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 3 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 4 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 5 (b) There shall be no right of appeal from a final order in a 6 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 7 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 8 (c) (1) Unless a circuit justice or judge issues a certificate of 9 appealability, an appeal may not be taken to the court of appeals from– 10 (A) the final order in a habeas corpus proceeding in which 11 the detention complained of arises out of process issued by a State court; or 12 (B) the final order in a proceeding under section 2255. 13 (2) A certificate of appealability may issue under paragraph (1) 14 only if the applicant has made a substantial showing of the denial of a constitutional right. 15 (3) The certificate of appealability under paragraph (1) shall 16 indicate which specific issue or issues satisfy the showing required by paragraph (2). 17 18 If a court denies habeas relief on procedural grounds without reaching the underlying 19 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 20 would find it debatable whether the petition states a valid claim of the denial of a constitutional 21 right and that jurists of reason would find it debatable whether the district court was correct in its 22 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 23 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 24 could not conclude either that the district court erred in dismissing the petition or that the 25 petitioner should be allowed to proceed further.” Id. 26 In the present case, reasonable jurists would not find the Court’s determination that 27 Petitioner’s habeas petition should be dismissed debatable or wrong, or that Petitioner should be wOoe 4:6 □□ EET OAD MUO, NO VO Ee Ye VV VI 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendation issued on May 29, 2020 (ECF No. 14) is 3 ADOPTED IN FULL; 4 2. The petition for writ of habeas corpus is DISMISSED; 5 3. The Clerk of Court is DIRECTED to CLOSE the case; and 6 4. The Court DECLINES to issue a certificate of appealability. 7 IT IS SO ORDERED. □□ g | Dated: _ August 10, 2020 7 LZ : 7 Cb bod — SENIOR DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28