(HC) Mendoza v. Sherman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS MENDOZA, No. 1:22-cv-00128-ADA-CDB (HC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS 14 STU SHERMAN, CORPUS 15 Respondent. (ECF Nos. 16, 20) 16 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 17 ORDER DECLINING TO ISSUE 18 CERTIFICATE OF APPEALABILITY 19 Petitioner Carlos Mendoza is a state prisoner proceeding pro se with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On June 21, 2022, Respondent filed a motion to dismiss the petition as untimely, 23 unexhausted, and for failure to state a cognizable claim. (ECF No. 16.) Petitioner did not file an 24 opposition. On November 3, 2022, the Magistrate Judge issued findings and recommendations to 25 grant Respondent’s motion to dismiss. (ECF No. 20.) The findings and recommendations were 26 served on Petitioner with notice to file any objections within twenty-one days after service. (Id.) 27 Petitioner did not file any objections, and the deadline to do so has passed. 28 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 this case. Having carefully reviewed the entire file, the Court concludes that 3 the Magistrate Judge’s findings regarding the untimeliness of Petitioner’s petition are supported 4 by the record and proper analysis. Addressing the Magistrate Judge’s findings regarding 5 exhaustion and Petitioner’s failure to state a cognizable claim because is unnecessary to the 6 disposition of this case. 7 In addition, the court declines to issue a certificate of appealability. A state prisoner 8 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 9 his petition, and an appeal is not allowed in certain circumstances. Miller-El v. Cockrell, 537 10 U.S. 322, 335–36 (2003). Upon denying a petition, the court may only issue a certificate of 11 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 12 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 13 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 14 been resolved in a different manner or that the issues presented were ‘adequate to deserve 15 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 16 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 17 In the present case, the Court finds that Petitioner has not made the required substantial 18 showing of a denial of a constitutional right to justify the issuance of a certificate of appealability. 19 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to 20 federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 21 Thus, the Court declines to issue a certificate of appealability. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 1. The findings and recommendations issued on November 3, 2022, (ECF No. 20), 3 are adopted; 4 2. Respondent’s motion to dismiss, (ECF No. 16), is granted; 5 3. The petition for writ of habeas corpus is denied with prejudice; 6 4. The Clerk of Court is directed to enter judgment and close the case; and 7 5. The Court declines to issue a certificate of appealability. 8 9 19 | IT IS SO ORDERED. 11 Dated: _ February 14, 2023 UNITED fTATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28