(HC) Hernandez v. Merlak ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODOLFO HERNANDEZ, No. 1:19-cv-01172-NONE-HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. RESPONDENT’S MOTION TO DISMISS § 2241 PETITION 14 STEVEN MERLAK, (Doc. Nos. 1, 20) 15 Respondent. 16 17 Petitioner Miguel Angel Villegas, a federal prisoner without counsel, has petitioned the 18 court for a writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1.) Pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302, the matter was referred to a United States Magistrate Judge. 20 On June 30, 2020, respondent moved to dismiss the petition. (Doc. No. 18). On August 26, 21 2020, the assigned magistrate judge issued findings and recommendations recommending that the 22 pending habeas petition be dismissed for lack of jurisdiction, among other reasons. (Doc. No. 20 23 at 2–4.) Petitioner has not filed any objections thereto, and the deadline to do so has passed. 24 Pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the undersigned has reviewed 25 this case de novo. The court finds the pending findings and recommendations to be supported by 26 the record and proper analysis and will adopt the findings and recommendations. 27 The court now turns to whether a certificate of appealability should be issued. A 28 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 1 | denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 2 | Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 3 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 4 | petition should have been resolved in a different manner or that the issues presented were 5 || ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 6 | (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 7 | court finds that reasonable jurists would not find the court’s determination that the petition should 8 | be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 9 | Therefore, the court declines to issue a certificate of appealability. 10 Accordingly, the court orders as follows: 11 1. The findings and recommendations issued on August 26, 2020 (Doc. No. 20) are 12 ADOPTED in full; 13 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 14 3. The court DECLINES to issue a certificate of appealability; and 15 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purposes of 16 closure and to close this case. 17 18 IT IS SO ORDERED. ~ ‘ae 19 Dated: _ February 2, 2021 Aaa ye UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28