(HC) Lupercio v. Mendoza ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON NAVARRO LUPERCIO, No. 1:21-cv-00579-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 MACARIO MENDOZA, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1, 5) 17 18 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2254. On April 12, 2021, the assigned magistrate judge 22 issued findings and recommendations recommending that the petition be dismissed as am 23 unauthorized second or successive petition. (Doc. No. 5.) Specifically, petitioner in this habeas 24 action challenges his 2003 conviction for attempted murder with the use of a firearm, but has 25 previously sought federal habeas relief in this court with respect to that same conviction 26 numerous times and has failed to establish that he has obtained prior leave from the Ninth Circuit to 27 file his successive petition. (See id. at 2–3.) The findings and recommendations were served upon 28 ///// 1 all parties and contained notice that any objections were to be filed within twenty-one (21) days 2 from the date of service of that order. To date, no party has filed objections. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 magistrate judge’s findings and recommendations are supported by the record and proper 6 analysis. 7 In addition, the court declines to issue a certificate of appealability. A state prisoner 8 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 9 his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 10 v. Cockrell, 537 U.S. 322, 335–36 (2003). If a court denies a petitioner’s petition, the court may 11 only issue a certificate of appealability when a petitioner makes a substantial showing of the 12 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 13 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 14 that) the petition should have been resolved in a different manner or that the issues presented 15 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 16 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 17 In the present case, the court finds that petitioner has not made the required substantial 18 showing of the denial of a constitutional right to justify the issuance of a certificate of 19 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 20 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 21 proceed further. Thus, the court DECLINES to issue a certificate of appealability. 22 Accordingly, the court orders as follows: 23 1. The findings and recommendations, filed April 12, 2021 (Doc. No. 5), are 24 ADOPTED IN FULL; 25 2. The petition for writ of habeas corpus is DISMISSED; 26 ///// 27 ///// 28 ///// 1 3. The clerk of court is DIRECTED to assign a district judge to this case for the 2 purpose of closing the case and then close this case; and, 3 4. The court DECLINES to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ June 18, 2021 wea rE 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28