(HC) Nava v. Becerra ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 LUIS ALBERTO ALARCON NAVA, Case No. 1:20-cv-01378-AWI-HBK (HC) 8 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 9 v. PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF 10 XAVIER BECERRA, COURT TO ENTER JUDGMENT AND CLOSE CASE 11 Respondent. (Doc. No. 14) 12 13 14 Petitioner Luis Alberto Alarcon Nava is a state prisoner proceeding in propria persona 15 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. On June 2, 16 2021, the magistrate judge assigned to the case issued findings and recommendations to dismiss 17 the petition. Doc. No. 14. These findings and recommendations were served on all parties and 18 contained notice that any objections were to be filed within twenty-one days from the date of 19 service of that order. Petitioner has filed no objections and the time for doing so has passed. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 21 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 22 the magistrate judge’s findings and recommendations are supported by the record and proper 23 analysis. 24 In addition, the Court declines to issue a certificate of appealability. A state prisoner 25 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 26 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 27 U.S. 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 28 appealability provides as follows: 1 (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 2 appeals for the circuit in which the proceeding is held. 3 (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 4 a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 5 (c) 6 (1) Unless a circuit justice or judge issues a certificate of appealability, an 7 appeal may not be taken to the court of appeals from— 8 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 9 court; or 10 (B) the final order in a proceeding under section 2255. 11 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 12 right. 13 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 14 15 28 U.S.C. § 2253. 16 If a court denies a petitioner’s petition, the court may only issue a certificate of 17 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 18 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable 19 jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 20 in a different manner or that the issues presented were ‘adequate to deserve encouragement to 21 proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 22 U.S. 880, 893 & n.4 (1983)). 23 In this case, the Court finds that Petitioner has not made the required substantial showing 24 of the denial of a constitutional right to justify the issuance of a certificate of appealability. 25 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to 26 federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 27 Thus, the Court will decline to issue a certificate of appealability. 28 /// 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations (Doc. No. 14) issued on June 2, 2021, are 4 ADOPTED in full; 5 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 6 3. The Clerk of Court shall ENTER judgment and CLOSE the file; and 7 4. The Court DECLINES to issue a certificate of appealability. 8 9 IT IS SO ORDERED. 19 | Dated: _July 19, 2021 — 7 : 7 Cb bod — SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28