(HC) Andara-Ponce v. Wolf ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JORGE ANDARA-PONCE, CASE NO. 1:20-cv-0765-AWI-HBK (HC) 7 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 8 v. RESPONDENT’S MOTION TO DISMISS AND DENY PETITIONER’S MOTION 9 CHAD WOLF, Acting Director of USICE, FOR TEMPORARY RESTRAINING et al., ORDER AS MOOT, DISMISSING 10 PETITION FOR WRIT OF HABEAS Defendant(s). CORPUS, AND DIRECTING CLERK OF 11 COURT TO ENTER JUDGMENT AND CLOSE CASE 12 (Doc. No. 12) 13 14 15 Petitioner Jorge Andara-Ponce, an immigration detainee currently on bail, is proceeding in 16 propria persona with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. No. 1. On 17 October 12, 2021, the assigned magistrate judge issued findings and recommendations that 18 recommended Respondent’s motion to dismiss (Doc. No 7) be granted and Petitioner’s motion for 19 temporary restraining order (Doc. No. 3) be denied as moot. Doc. No. 12. These findings and 20 recommendations were served on all parties and contained notice that any objections were to be 21 filed within fourteen days from the date of service of that order. Petitioner has not filed any 22 objections and the deadline has passed. 23 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 24 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 25 magistrate judge’s findings and recommendations are supported by the record and proper analysis. 26 In addition, the Court declines to issue a certificate of appealability. A state prisoner 27 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 28 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 1 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 2 appealability provides as follows: 3 (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 4 appeals for the circuit in which the proceeding is held. 5 (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 a 6 person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 7 (c) 8 (1) Unless a circuit justice or judge issues a certificate of appealability, an 9 appeal may not be taken to the court of appeals from— 10 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 11 court; or 12 (B) the final order in a proceeding under section 2255. 13 (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 14 right. 15 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 16 17 28 U.S.C. § 2253. 18 If a court denies a petitioner’s petition, the court may only issue a certificate of 19 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 20 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 21 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 22 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 23 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 24 880, 893 & n.4 (1983)). 25 In this case, the Court finds that Petitioner has not made the required substantial showing 26 of the denial of a constitutional right to justify the issuance of a certificate of appealability. 27 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to 28 federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 1 | Thus, the Court will decline to issue a certificate of appealability. 2 3 ORDER 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The findings and recommendations (Doc. No. 12) issued on October 12, 2021, are 6 ADOPTED in full; 7 2. Plaintiffs petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 8 3. Plaintiff's motion for temporary restraining order (Doc. No. 3) is DENIED as 9 moot; 10 4. The Clerk of Court shall ENTER judgment and CLOSE the file; and 11 5. The Court DECLINES to issue a certificate of appealability. 12 13 4 IT IS SO ORDERED. 15 Dated: _ November 8, 2021 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28