(HC) Sergio Torres v. Acting Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SERGIO TORRES, No. 1:20-cv-01001-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 v. CERTIFICATE OF APPEALABILITY, AND DIRECTING THE CLERK OF COURT TO 15 ASSIGN DISTRICT JUDGE AND CLOSE CASE 16 ACTING WARDEN, (Doc. Nos. 1, 14) 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. On September 14, 2020, the assigned magistrate judge issued 21 findings and recommendations recommending that the petition be dismissed. (Doc. No. 14.) The 22 findings and recommendations were served upon all parties and contained notice that any 23 objections were to be filed within ten (10) days from the date of service of that order. To date, no 24 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 ///// 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, 335-36 (2003). 5 If a court denies the petition, the court may only issue a certificate of appealability when a 6 || petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 7 | 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 8 | could debate whether (or, for that matter, agree that) the petition should have been resolved in a 9 | different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 10 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 US. 11 | 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, the court orders as follows: 18 1. The findings and recommendations issued on September 14, 2020 (Doc. No. 14), 19 are adopted in full; 20 2. The petition for writ of habeas corpus is dismissed; 21 3. The court declines to issue a certificate of appealability; and 22 4. The Clerk of Court is directed to assign a district judge to this case for the purpose 23 of closing the case and then to close the case. 24 | IT IS SO ORDERED. me □ Dated: _ October 23, 2020 aL Al 7 ye 26 UNITED STATES DISTRICT JUDGE 27 28