(HC) Lopez-Miranda v. Merlak ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANUEL DE JESUS LOPEZ- No. 1:19-cv-01021-NONE-JDP MIRANDA, 12 ORDER ADOPTING FINDINGS AND Petitioner, RECOMMENDATIONS TO DISMISS 13 PETITION FOR LACK OF JURISDICTION v. 14 (Doc. No. 8) STEVEN MERLAK, 15 Respondent. 16 17 Petitioner Manuel De Jesus Lopez-Miranda, a federal prisoner proceeding without 18 counsel, seeks the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) 19 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 20 § 636(b)(1)(B) and Local Rule 302. 21 On February 7, 2020, the assigned magistrate judge issued findings and recommendations 22 recommending that the pending petition be dismissed for lack of jurisdiction. (Doc. No. 8.) The 23 findings and recommendations were served on petitioner and contained notice that any objections 24 thereto were to be filed within fourteen (14) days. (Id.) The time for filing objections has passed 25 and petitioner failed to do so. 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 28 court finds the findings and recommendations to be supported by the record and proper analysis. 1 In his pending petition, petitioner claims that the circumstances of his confinement violate 2 his right to proper medical care; stating that prison officials at his place of confinement did not 3 provide him adequate medical care to treat his hiatal and umbilical hernias over a period of fifteen 4 months. (Doc. No. 1 at 2.) As the findings and recommendations correctly conclude, this claim 5 is not cognizable in this habeas corpus action but rather may be pursued only as a claim brought 6 in a civil rights action under 42 U.S.C. § 1983. (Doc. No. 8 at 2.) The findings and 7 recommendations also correctly explain that if deemed appropriate under the circumstances this 8 court may recharacterize a habeas corpus petition as a claim under § 1983, so long as the court 9 warns the petitioner of the consequences of doing so and provides an opportunity for petitioner to 10 withdraw the motion. (Id.) Here, however, the magistrate judge correctly reasoned that 11 recharacterization of the pending petition is not appropriate under the circumstances of this case 12 because the allegations in the petition are too conclusory to state a cognizable § 1983 claim as 13 currently pled and because petitioner has not identified any particular individual who directly 14 committed the acts or omissions that allegedly violated his rights under the Eighth Amendment.1 15 (Id. at 2–3.) 16 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 17 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 18 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 19 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 20 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 21 court issue or deny a certificate of appealability when entering a final order adverse to a 22 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 23 Cir. 1997). 24 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 25 issue a certificate of appealability when “the applicant has made a substantial showing of the 26 27 1 The magistrate judge also forewarned petitioner that filing a § 1983 action would require payment of a higher filing fee, albeit over time by way of deductions from his trust account. 28 (Doc. No. 8 at 3.) In addition, petitioner was provided with a § 1983 complaint form. (Id.) 1 | denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 2 || petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 3 | that) the petition should have been resolved in a different manner or that the issues presented 4 | were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 5 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 6 In the present case, the court concludes that petitioner has not made the required 7 | substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 8 || appealability. Reasonable jurists would not find the court’s determination that petitioner is not 9 | entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 10 || petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 11 | acertificate of appealability. 12 Accordingly: 13 1. The findings and recommendations issued on February 7, 2020 (Doc. No. 8) are 14 adopted in full; 15 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 16 3. The court declines to issue a certificate of appealability; and 17 4. The Clerk of Court is directed to assign a district judge to this case for the 18 purposes of closure and to close this case. 19 | IT IS SO ORDERED. me □ | Dated: _ March 4, 2020 Yel A Load 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28