(HC) Rodriguez v. On Habeas Corpus ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADRIAN RODRIGUEZ, No. 1:19-cv-00965-AWI-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 5) 13 ORDER DISMISSING PETITION FOR 14 v. WRIT OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE 16 CASE UNNAMED, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 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 August 13, 2019, the Magistrate Judge assigned 22 to the case issued Findings and Recommendation to dismiss the petition for failure to name a 23 proper respondent, failure to exhaust state remedies, and failure to state a cognizable federal 24 claim. (Doc. No. 5.) This Findings and Recommendation was served upon all parties and 25 contained notice that any objections were to be filed within thirty (30) days from the date of 26 service of that order. To date, no party has filed objections. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 1 the Magistrate Judge’s Findings and Recommendation is supported by the record and proper 2 analysis. 3 In addition, the Court declines to issue a certificate of appealability. A state prisoner 4 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 5 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 6 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 7 appealability is 28 U.S.C. § 2253, which provides as follows: 8 (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 appeals for the circuit 9 in which the proceeding is held. 10 (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 person 11 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 12 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 13 not be taken to the court of appeals from— 14 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 15 (B) the final order in a proceeding under section 2255. 16 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 17 made a substantial showing of the denial of a constitutional right. 18 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 19 20 If a court denies a petitioner’s petition, the court may only issue a certificate of 21 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 22 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 23 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 24 been resolved in a different manner or that the issues presented were ‘adequate to deserve 25 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 26 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 27 In the present case, the Court finds that Petitioner has not made the required substantial 28 showing of the denial of a constitutional right to justify the issuance of a certificate of 1 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 2 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 3 | proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 4 Accordingly, the Court orders as follows: 5 1. The Findings and Recommendations, filed August 13, 2019 (Doc. No. 5), is 6 ADOPTED IN FULL; 7 2. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; 8 3, The Clerk of Court is DIRECTED to ENTER JUDGMENT and CLOSE the file; 9 and, 10 4. The Court DECLINES to issue a certificate of appealability. 11 b IT IS SO ORDERED. 13 | Dated: _ October 22, 2019 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28