(HC) Tashchyan v. Lizarraga ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NERSES TASHCHYAN, No. 1:18-cv-01242-DAD-JLT (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 14 J. LIZARRAGA, PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 15 Respondent. TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. No. 20) 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On June 20, 2019, the 20 magistrate judge issued findings and recommendation recommending that the petition be denied 21 with prejudice due to petitioner’s failure to exhaust his claims by first presenting them to the 22 state’s highest court and failure to state a cognizable claim for federal habeas relief. (Doc. No. 23 20.) Those findings and recommendations were served upon petitioner and contained notice that 24 any objections thereto were to be filed within twenty-one (21) days of the date of service of that 25 order. To date, petitioner has not filed objections, and the time for doing so has passed. 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 entire file, the court holds the findings 28 and recommendation to be supported by the record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 2 | acertificate of appealability should issue. A state prisoner seeking a writ of habeas corpus has no 3 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 4 | allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 5 || § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 6 | the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 7 | of reason would find it debatable whether the petition states a valid claim of the denial of a 8 | constitutional right and that jurists of reason would find it debatable whether the district court was 9 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 10 | procedural bar is present and the district court is correct to invoke it to dispose of the case, a 11 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 12 | that the petitioner should be allowed to proceed further.” Jd. Moreover, “[w]here a district court 13 || has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is 14 | straightforward: The petitioner must demonstrate that reasonable jurists would find the district 15 || court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 16 | 473, 484 (2000). In the present case, the court finds that reasonable jurists would not find the 17 || court’s determination that the petition should be dismissed debatable or wrong, or that petitioner 18 | should be allowed to proceed further. Therefore, the court declines to issue a certificate of 19 | appealability. 20 Accordingly: 21 1. The findings and recommendations issued June 20, 2019 (Doc. No. 20) are 22 adopted; 23 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed with prejudice; 24 3. The Clerk of the Court is directed to close the case; and 25 4. The court declines to issue a certificate of appealability. 26 | IT IS SO ORDERED. me □ 27 Li fa £5 Dated: _ November 7, 2019 te T Se 28 UNITED STATES DISTRICT JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28