(HC) Rivera v. Ndoh ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EFRAIN ARMENTA RIVERA, Case No. 1:19-cv-01725-AWI-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 ROSEMARY NDOH, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 15 Respondent. DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 (ECF Nos. 6, 10) 17 18 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 19 U.S.C. § 2254. On March 27, 2020,1 the Magistrate Judge issued Findings and Recommendation 20 that recommended granting Respondent’s motion to dismiss and dismissing the petition for writ 21 of habeas corpus as untimely. (ECF No. 10). On April 20, 2020, Petitioner filed timely 22 objections. (ECF No. 11). 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 24 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 25 objections, the Court concludes that the Findings and Recommendation is supported by the 26 record and proper analysis, and there is no need to modify the Findings and Recommendation. 27 1 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 4 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 5 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 6 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 7 (b) There shall be no right of appeal from a final order in a 8 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 9 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 10 (c) (1) Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the court of appeals from– 12 (A) the final order in a habeas corpus proceeding in which 13 the detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) 16 only if the applicant has made a substantial showing of the denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall 18 indicate which specific issue or issues satisfy the showing required by paragraph (2). 19 20 If a court denies habeas relief on procedural grounds without reaching the underlying 21 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 22 would find it debatable whether the petition states a valid claim of the denial of a constitutional 23 right and that jurists of reason would find it debatable whether the district court was correct in its 24 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 25 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 26 could not conclude either that the district court erred in dismissing the petition or that the 27 petitioner should be allowed to proceed further.” Id. WAS 1.49 UVOVEE OUI OAR RVUIOCT te PIR VOTE TOYO VM VIS 1 In the present case, the Court finds that reasonable jurists would not find the Court’s 2 | determination that Petitioner’s federal habeas corpus petition should be dismissed debatable or 3 | wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court declines to 4 | issue a certificate of appealability. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendation issued on March 27, 2020 (ECF No. 10) is 7 ADOPTED IN FULL; 8 2. Respondent’s motion to dismiss (ECF No. 6) is GRANTED; 9 3. The petition for writ of habeas corpus is DISMISSED as untimely; 10 4. The Clerk of Court is directed to CLOSE the case; and 11 5. The Court DECLINES to issue a certificate of appealability. 12 B IT IS SO ORDERED. 14 | Dated: _ August 20, 2020 — 7 : 7 Cb bod — SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28