(HC) Mendoza v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE MENDOZA, No. 1:19-cv-01521-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 TO ASSIGN DISTRICT JUDGE FOR PATRICK COVELLO, Acting Warden of PURPOSE OF CLOSING CASE AND TO 15 Mule Creek State Prison, CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 Respondent. (Doc. No. 25) 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. On May 13, 2021, the assigned magistrate judge 21 issued findings and recommendations recommending that the pending petition be denied on its 22 merits. (Doc. No. 25.) Those findings and recommendations were served upon all parties and 23 contained notice that any objections thereto were to be filed within thirty days from the date of 24 service. On August 9, 2021, petitioner filed objections to the magistrate judge’s findings and 25 recommendations. (Doc. No. 28.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 27 de novo review of the case. Having carefully reviewed the findings and recommendations and the 28 entire file in this case, including petitioner’s objections, the court concludes that the pending 1 findings and recommendations are supported by the record and proper analysis. Petitioner’s 2 objections present one of several possible interpretations of the facts, but do not call into question 3 the magistrate judge’s conclusion that the state court did not act unreasonably when it determined 4 that there was sufficient evidence to support defendant’s underlying conviction for kidnapping to 5 commit robbery. 6 In addition, the court declines to issue a certificate of appealability. A state prisoner 7 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 8 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 9 U.S. 322, 335-336 (2003); see also 28 U.S.C. § 2253. If a court denies a petitioner’s petition, the 10 court may only issue a certificate of appealability when a petitioner makes a substantial showing 11 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, 12 the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, 13 agree that) the petition should have been resolved in a different manner or that the issues 14 presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 15 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 16 In the present case, the court finds that petitioner has not made the required substantial 17 showing of the denial of a constitutional right to justify the issuance of a certificate of 18 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 19 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 20 proceed further. Thus, the court DECLINES to issue a certificate of appealability. 21 Accordingly, the court orders as follows: 22 1. The findings and recommendations, filed May 13, 2021 (Doc. No. 25), are 23 ADOPTED IN FULL; 24 2. The petition for writ of habeas corpus is DENIED WITH PREJUDICE; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the 2 purpose of closing the case and then to close the case; and, 3 4. The court DECLINES to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ October 13, 2021 Sea 1" S098 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