(HC) Duong v. Gonsalez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOC CHI DUONG, No. 1:22-cv-01409-ADA-SKO (HC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 11) 14 NANCY GONSALEZ, et al., ORDER DISMISSING ACTION AND DIRECTING CLERK OF COURT TO ENTER 15 Defendants. JUDGMENT AND CLOSE CASE 16 ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 17 18 Petitioner Loc Chi Duong is a former immigration detainee proceeding with an action 19 sounding in both habeas and civil rights. This matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 12, 2022, the assigned Magistrate Judge issued findings and 22 recommendations to dismiss the petition for failure to state a claim. (ECF No. 11.) The findings 23 and recommendations were served upon all parties and contained notice that any objections 24 thereto were to be filed within twenty-one (21) days after service. No objections have been filed, 25 and the deadline to do so has expired. 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 27 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 28 the findings and recommendations are supported by the record and proper analysis. 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. See Miller-El v. Cockrell, 4 537 U.S. 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate 5 of appealability is 28 U.S.C. § 2253, which provides as follows: 6 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of 7 appeals for the circuit in which the proceeding is held. 8 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 9 trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 10 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 11 appeal may not be taken to the court of appeals from— 12 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 13 court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 16 right. 17 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 18 19 If a court denies a petitioner’s petition, the court may only issue a certificate of 20 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 21 See 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 22 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 23 been resolved in a different manner or that the issues presented were ‘adequate to deserve 24 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 25 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 26 In the present case, the Court finds that Petitioner has not made the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of 28 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 1 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 2 | proceed further. Thus, the Court declines to issue a certificate of appealability. 3 Accordingly, 4 1. The findings and recommendations issued on December 12, 2022 (ECF No. 11), 5 are adopted in full; 6 2. The petition for writ of habeas corpus is dismissed with prejudice; 7 3. The Clerk of Court is directed to enter judgment and close the case; and 8 4. The Court declines to issue a certificate of appealability. 9 This order terminates the action in its entirety. 10 11 12 | TIS SO ORDERED. 13 Dated: _ May 30, 2023 4 UNITED fTATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28