(HC) Vibanco v. Hatton ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLANDO VIBANCO, Case No. 1:17-cv-00926-AWI-HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 28) 13 v. ORDER DENYING PETITION FOR WRIT 14 SHAWN HATTON, OF HABEAS CORPUS 15 Respondent. ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE 16 CASE 17 18 Petitioner Orlando Vibanco is a state prisoner proceeding in propria persona with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 15.) On August 28, 20 2020, the Magistrate Judge assigned to the case issued Findings and Recommendations to deny 21 the petition. (Doc. No. 28.) These Findings and Recommendations were served upon all parties 22 and contained notice that any objections were to be filed within thirty days from the date of 23 service of that order. To date, no party has filed objections. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the Magistrate Judge’s Findings and Recommendations are supported by the record and proper 27 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. Miller-El v. Cockrell, 537 4 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 5 appealability is 28 U.S.C. § 2253, which provides as follows: 6 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit 7 in which the proceeding is held. 8 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person 9 charged with a 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 appealability, an appeal may 11 not be taken to the court of appeals from— 12 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 13 (B) the final order in a proceeding under section 2255. 14 (2) A certificate of appealability may issue under paragraph (1) only if the 15 applicant has made a substantial showing of the denial of a constitutional right. 16 (3) The certificate of appealability under paragraph (1) shall indicate which 17 specific issue or issues satisfy the showing required by paragraph (2). 18 If a court denies a petitioner’s petition, the court may only issue a certificate of 19 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 20 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 21 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 22 been resolved in a different manner or that the issues presented were ‘adequate to deserve 23 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 24 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 25 In the present case, the Court finds that Petitioner has not made the required substantial 26 showing of the denial of a constitutional right to justify the issuance of a certificate of 27 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 28 1 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 2 | proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 3 Accordingly, the Court orders as follows: 4 1. The Findings and Recommendations, filed August 28, 2020 (Doc. No. 28), are 5 ADOPTED IN FULL; 6 2. The petition for writ of habeas corpus is DENIED; 7 3, The Clerk of Court shall ENTER JUDGMENT and CLOSE the file; and, 8 4. The Court DECLINES to issue a certificate of appealability. 9 10 IT IS SO ORDERED. Dee ~_-SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28