(HC) Tapia v. Santoro ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON LOPEZ TAPIA, No. 1:20-cv-01768-DAD-HBK (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 KELLY SANTORO, PETITION 15 Respondent. (Doc. No. 10) 16 17 18 Petitioner Ramon Lopez Tapia is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 20 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 11, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that the pending petition be dismissed because it is a second or successive petition 23 and petitioner has not obtained leave from the Ninth Circuit to proceed with a second or 24 successive petition. (Doc. No. 10 at 4.) The pending findings and recommendations were served 25 on petitioner at his address of record and contained notice that any objections thereto were to be 26 filed within thirty (30) days of service. (Id. at 5.) On April 15, 2021, the court received 27 petitioner’s timely objections dated April 7, 2021. (Doc. No. 11.) Those objections do not 28 address the fact that petitioner has not obtained an order from the Ninth Circuit authorizing him to 1 | file a second or successive petition. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 3 || de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 4 | objections, the court concludes that the findings and recommendations are supported by the 5 | record and by proper analysis. 6 Having determined that petitioner is not entitled to habeas relief, the court now turns to 7 | whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas 8 | corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal 9 | is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 10 | U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds without 11 || reaching the underlying constitutional claims, the court should issue a certificate of appealability 12 | “if jurists of reason would find it debatable whether the petition states a valid claim of the denial 13 | of a constitutional right and that jurists of reason would find it debatable whether the district court 14 || was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the 15 || present case, the court finds that reasonable jurists would not find the court’s determination that 16 | the petition should be dismissed debatable or wrong, or that petitioner should be allowed to 17 | proceed further. Therefore, the court declines to issue a certificate of appealability. 18 Accordingly: 19 1. The findings and recommendations issued on March 11, 2021 (Doc. No. 20 10) are adopted in full; 21 2. The petition for writ of habeas corpus is dismissed; 22 3. The court declines to issue a certificate of appealability; and 23 4. The Clerk of Court is directed to close this case. 24 | IT IS SO ORDERED. me □ * | Dated: _May 10, 2021 Yel A Lange 26 UNITED STATES DISTRICT JUDGE 27 28