(HC) Carbajal v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO XAVIER CARBAJAL, JR., No. 1:19-cv-01628-DAD-EPG (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING 14 RALPH DIAZ, PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. No. 7) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. This matter was referred to the magistrate judge pursuant to 28 20 U.S.C. § 636(b)(1). 21 On December 11, 2019, the assigned magistrate judge issued findings and 22 recommendation recommending that the petition be denied. (Doc. No. 7.) Specifically, the 23 magistrate judge concluded that (1) petitioner cannot bring a petition directed solely at an expired 24 conviction and (2) petitioner previously sought and was denied federal habeas relief with respect 25 to his current sentence. (Doc. No. 7.) The findings and recommendations were served on 26 petitioner and contained notice that any objections were to be filed within thirty (30) days of the 27 date of service of that order. On January 2, 2020, petitioner filed timely objections. (Doc. No. 8.) 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court holds the findings and recommendation to be supported by the record and 4 proper analysis. 5 In his objections, petitioner claims that he is not challenging his 1992 judgment of 6 conviction entered in the Merced County Superior Court in Case No. 17225. Rather, petitioner 7 contends he is challenging his 1997 judgment of conviction entered in the Merced County 8 Superior Court in Case No. 20873. (Doc. No. 8 at 1.) The petition filed in this federal habeas 9 action, however, clearly asserts that petitioner is challenging his 1992 conviction for violating 10 California Penal Code § 4573.5 which was entered in Merced County Superior Court Case No. 11 17225 and in which plaintiff received a six-month sentence. (See Doc. No. 1 at 1.) Moreover, 12 even if the pending petition did seek to challenging his 1997 conviction, petitioner is not entitled 13 to federal habeas relief. In his objections petitioner states that he was sentenced to a two year 14 term of imprisonment in connection with his 1997 conviction. (Doc. No. 8 at 8.) Petitioner has 15 fully served the sentence imposed on his 1997 conviction, and he “cannot bring a federal habeas 16 petition directed solely at [that] conviction[.]” Lackawanna County Dist. Attorney v. Coss, 532 17 U.S. 394, 401 (2001). To the extent petitioner is arguing that the sentence he is currently serving 18 was improperly enhanced as a result of his 1997 prior conviction which he now contends was 19 improperly obtained, petitioner cannot satisfy the procedural prerequisites for relief under § 2254. 20 As noted in the findings and recommendation, petitioner previously sought federal habeas relief 21 in this court with respect to his current conviction and sentence, and thus, a challenge to his 22 current sentence would be a “second or successive” one under 28 U.S.C. § 2244(b). Petitioner 23 has not sought or obtained leave from the Ninth Circuit Court of Appeals to proceed with a 24 second or successive petition. See 28 U.S.C. § 2254(b)(3)(A). 25 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 26 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 27 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 28 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. 1 § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 2 | the underlying constitutional claims, the court should issue a certificate of appealability if 3 | “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 4 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 5 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 6 | Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that 7 | reasonable jurists would not find the court’s determination that the petition should be denied to be 8 | debatable or wrong, or that petitioner should be allowed to proceed further. 9 Accordingly: 10 1. The findings and recommendation issued on December 11, 2019 (Doc. No. 7) are 11 adopted; 12 2. The petition for writ of habeas corpus is denied; 13 3. The Clerk of Court is directed to close the case; and 14 4. The court declines to issue a certificate of appealability. 15 | IT IS SO ORDERED. si □ ° Dated: _February 24, 2020 Yl Af oot 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28