(HC) Lopez v. Fisher ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LOPEZ, No. 1:19-cv-01486-NONE-HBK 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 RAYTHEL FISHER, JR., TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1, 26) 17 18 Petitioner Daniel Lopez is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 3, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that the petition be dismissed for failure to comply with the applicable statute of 23 limitations. (Doc. No. 26.) The magistrate judge further found that petitioner is not entitled to 24 equitable tolling of the applicable statute of limitations. (Id.) The findings and recommendations 25 were served on petitioner at his address of record and contained notice that any objections thereto 26 were to be filed within twenty-one (21) days of service. (Id. at 16.) Petitioner has filed no 27 objections and the time for doing so has passed. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 3 | findings and recommendations are supported by the record and by proper analysis. 4 Having determined that petitioner is not entitled to habeas relief, the court now turns to 5 | whether a certificate of appealability should issue. The federal rules governing habeas cases 6 | brought by state prisoners require a district court issuing an order denying a habeas petition to 7 | either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 8 | 1l(a). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an 9 | appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 10 | (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 11 | with □ certificate of appealability). A judge shall grant a certificate of appealability “only if the 12 | applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 13 | § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, 28 U.S.C. 14 | § 2253(c)(3). In the present case, the court finds that reasonable jurists would not find the court’s 15 | rejection of petitioner’s claims to be debatable or conclude that the petition should proceed 16 | further. Moreover, it appears at this time that any alleged error has been corrected by his release. 17 | Thus, the court declines to issue a certificate of appealability. 18 Accordingly: 19 1. The findings and recommendations issued on June 3, 2021 (Doc. No. 26), are 20 adopted in full; 21 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 22 3. The court declines to issue a certificate of appealability; and 23 4. The Clerk of the Court is directed to assign a district judge to this case for the 24 purpose of closing the case and then to close the case. 25 | IT IS SO ORDERED. me □ 26 Li fa £5 Dated: _ September 30, 2021 te T Se 27 UNITED STATES DISTRICT JUDGE 28