(HC) Lupercio v. Mendoza ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON N. LUPERCIO, No. 1:21-cv-00935-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF 14 MACARIO MENDOZA, COURT TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO 15 Respondent. ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. No. 13) 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On June 17, 2021, the assigned 21 magistrate judge issued findings and recommendations recommending that the petition be 22 dismissed as an unauthorized second or successive petition. (Doc. No. 13.) Specifically, the 23 findings and recommendations note that this is petitioner’s seventh petition seeking federal 24 habeas relief with respect to the same 2003 conviction petitioner suffered in state court. (Id. at 2.) 25 These findings and recommendations were served upon all parties and contained notice that any 26 objections thereto were to be filed within twenty-one (21) days from the date of service of that 27 order. (Id. at 3.) On June 24, 2021, petitioner filed objections to the pending findings and 28 recommendations. (Doc. No. 17.) 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 concludes that the magistrate judge’s findings and recommendations are 4 supported by the record and proper analysis. To proceed on a second or successive petition, 5 petitioner was required to first obtain leave from the Ninth Circuit before proceeding. (See Doc. 6 No. 13 at 3 (citing 28 U.S.C. § 2244(b)).) Here, petitioner has not sought authorization from the 7 Ninth Circuit for any of his subsequently filed petitions including the one now pending before the 8 court and thus, his petition must be dismissed. 9 In addition, the court declines to issue a certificate of appealability. A state prisoner 10 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 11 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 12 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. A successive petition under 28 U.S.C. § 2255 that is 13 disguised as a § 2241 petition required a certificate of appealability. Harrison v. Ollison, 519 14 F.3d 952, 958 (9th Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). If a court 15 denies a petitioner’s petition, the court may only issue a certificate of appealability when a 16 petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 17 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 18 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 19 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 20 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 21 880, 893 (1983)). 22 In the present case, the court finds that petitioner has not made the required substantial 23 showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 25 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 26 proceed further. Thus, the court DECLINES to issue a certificate of appealability. 27 ///// 28 ///// 1 Accordingly, the court orders as follows: 2 1. The findings and recommendations, filed June 17, 2021 (Doc. No. 13), are 3 ADOPTED IN FULL; 4 2. The petition for writ of habeas corpus is DISMISSED; 5 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the 6 purpose of closing the case and then to ENTER JUDGMENT and close the case; 7 and, 8 4. The court DECLINES to issue a certificate of appealability. 9 | IT IS SO ORDERED. si am | Dated: _ July 30, 2021 LL 1 Yrod 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28