(HC) Paz v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO PAZ, No. 1:20-cv-00177-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS v. CORPUS, DIRECTING THE CLERK OF 14 COURT TO CLOSE THIS CASE AND DECLINING TO ISSUE CERTIFICATE OF 15 APPEALABILITY STU SHERMAN, Warden, 16 (Doc. Nos. 7 & 11) 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 June 29, 2020, the magistrate judge assigned to 21 the case issued findings and recommendations recommending that respondent’s motion to dismiss 22 the pending petition be granted. (Doc. No. 11.) The findings and recommendations were served 23 upon all parties and contained notice that any objections thereto were to be filed within thirty 24 days from the 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 ///// EE POMPE VRP MVOC toe POC VOre THe TP OYyYt OMI 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. 28 U.S.C. § 2253; Miller-El 4 | v. Cockrell, 537 U.S. 322, 335-336 (2003). 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: 18 1. The findings and recommendations, filed June 29, 2020 (Doc. No. 11), are 19 | adopted; 20 2. Respondent’s motion to dismiss (Doc. No. 7) is granted and the petition for writ of 21 | habeas corpus is dismissed; 22 3.. The Clerk of Court is directed to assign a district judge to this case for the 23 || purposes of closure and then close this case; and 24 4. The court declines to issue a certificate of appealability. 25 | IT IS SO ORDERED. me □ Dated: _ August 22, 2020 J aL, A 4 27 UNITED STATES DISTRICT JUDGE 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28