(HC)Jimenez v. Superior Court of California, County of Kings ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDY JIMENEZ, Case No. 1:19-cv-00727-NONE-JDP (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION 14 SUPERIOR COURT OF CALIFORNIA, (Doc. No. 11) COUNTY OF KINGS, 15 Respondent. 16 17 18 On May 17, 2019, petitioner Rudy Jimenez, a state prisoner proceeding without counsel, 19 filed with this federal court a “Petition for Resentencing” under California Penal Code § 1170.95. 20 (Doc. No. 1.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 § 636(b)(1)(B) and Local Rule 302. 22 On May 29, 2019, the assigned magistrate judge issued an order requiring petitioner to 23 show cause in writing why the petition should not be summarily dismissed, pointing out three 24 obvious flaws: (1) the petition is addressed to the Kings County Superior Court, not this federal 25 court; (2) petitioner does not explain why he is entitled to resentencing; (3) petitioner was 26 convicted and sentenced in state court more than two decades ago, in 1997, making it difficult to 27 imagine how any challenge to his sentence would be timely. (Doc. No. 6.) Despite having 28 ///// 1 requested and been given an extension of time to respond to the order to show cause (Doc. No. 9), 2 plaintiff failed to respond. 3 Accordingly, on February 7, 2020, the magistrate judge issued findings and 4 recommendations recommending that the pending petition be dismissed on the grounds that it is 5 plain that petitioner is not entitled to federal habeas relief. (Doc. No. 11.) The findings and 6 recommendations were served on petitioner and contained notice that any objections thereto were 7 due within fourteen (14) days. (Id.) The time for filing objections has passed and petitioner 8 failed to do so. 9 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 10 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 11 court finds the findings and recommendations to be supported by the record and proper analysis. 12 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 13 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 14 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 15 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 16 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 17 court issue or deny a certificate of appealability when entering a final order adverse to a 18 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 19 Cir. 1997). 20 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 21 issue a certificate of appealability when “the applicant has made a substantial showing of the 22 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 23 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 24 that) the petition should have been resolved in a different manner or that the issues presented 25 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 26 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 27 In the present case, the court concludes that petitioner has not made the required 28 substantial 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 wrong or debatable, and they would not conclude that 3 | petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 4 | acertificate of appealability. 5 Accordingly: 6 1. The findings and recommendations issued on February 7, 2020 (Doc. No. 11) are 7 adopted in full; 8 2. The petition (Doc. No. 1) is dismissed; 9 3. The court declines to issue a certificate of appealability; and 10 4. The Clerk of Court is directed to assign a district judge to this case for the 11 purposes of closure and to close this case. 12 | IT IS SO ORDERED. si □ Dated: _ March 4, 2020 J al, Al i 7 a 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28