(HC) Montenegro v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN M. MONTENEGRO, No. 1:20-cv-00695-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS v. CORPUS, DIRECTING THE CLERK OF 14 COURT TO ENTER JUDGMENT AND CLOSE CASE AND DECLINING TO ISSUE 15 CERTIFICATE OF APPEALABILITY WARDEN J. SULLIVAN, 16 (Doc. No. 5) Respondent. 17 18 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. On June 15, 2020, the magistrate judge assigned to 20 the case issued findings and recommendation recommending that the petition be dismissed, 21 reasoning that the petition fails to articulate any ground for relief that is cognizable on federal 22 habeas review. (Doc. No. 5.) The findings and recommendations were served upon all parties 23 and contained notice that any objections were to be filed within thirty days from the date of 24 service of that order. To date, no party has filed objections. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 27 magistrate judge’s findings and recommendations are supported by the record and proper 28 analysis. wOoOe 4:6 UVM OMAR VR MUO OP IR OPE Te PAY eV 1 In addition, the court declines to issue a certificate of appealability. A state prisoner 2 | seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 3 | his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 4 | v. Cockrell, 537 U.S. 322, 335-336 (2003). 5 If a court denies a petitioner’s petition, the court may only issue a certificate of 6 | appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 7 | 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 8 || “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 9 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 10 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 11 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 12 In the present case, the court finds that petitioner has not made the required substantial 13 | showing of the denial of a constitutional right to justify the issuance of a certificate of 14 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 15 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 16 | proceed further. Thus, the court DECLINES to issue a certificate of appealability. 17 Accordingly, the court orders as follows: 18 1. The findings and recommendations, filed June 15, 2020 (Doc. No. 5), are adopted; 19 2. The petition for writ of habeas corpus is dismissed; 20 3. The clerk of court is directed to close this case; and, 21 4. The court declines to issue a certificate of appealability. 22 | IT IS SO ORDERED. me □ | Dated: _ August 21, 2020 YL A Dou 24 UNITED STATES DISTRICT JUDGE 25 26 27 28