(HC) Herrera v. Cisneros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAIME HERRERA, No. 1:22-cv-00703-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. No. 17) 14 v. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK 15 OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 TERESA CISNEROS, Warden, ORDER DENYING PETITIONER’S 17 Respondent. APPLICATION FOR CERTIFICATE OF APPEALABILITY 18 (Doc. No. 19) 19 20 Jaime Herrera is a state prisoner proceeding pro se and in forma pauperis with a petition 21 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On November 28, 2022, the assigned magistrate judge issued Findings and 24 Recommendations to deny the petition on its merits. (Doc. No. 17.) Those Findings and 25 Recommendations were served upon all parties and contained notice that any objections thereto 26 were to be filed within 30 days after service. On December 23, 2022, Petitioner filed objections 27 to the Findings and Recommendations. (Doc. No. 18.) Respondent did not file a reply. In 28 addition, on December 28, 2022, Petitioner filed an application for certificate of appealability. 1 (Doc. No. 19.) 2 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 3 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 4 objections, the Court concludes that the Magistrate Judge’s Findings and Recommendations are 5 supported by the record and proper analysis. Petitioner's objections present no grounds for 6 questioning the Magistrate Judge's analysis. 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 only allowed in certain circumstances. Miller-El v. Cockrell, 537 10 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 11 appealability is 28 U.S.C. § 2253, which provides as follows: 12 (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 13 appeals for the circuit in which the proceeding is held. 14 (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 15 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. 16 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 17 appeal may not be taken to the court of appeals from— 18 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 19 court; or 20 (B) the final order in a proceeding under section 2255. 21 (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 22 right. 23 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 24 25 If a court denies a petitioner’s petition, the court may only issue a certificate of 26 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 27 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 28 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 1 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 2 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 3 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 4 In the present case, the Court finds that Petitioner has not made the required substantial 5 | showing of the denial of a constitutional right to justify the issuance of a certificate of 6 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 7 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 8 || proceed further. Thus, the Court declines to issue a certificate of appealability. Accordingly, 9 1. The Findings and Recommendations issued on November 28, 2022, (Doc. No. 17), 10 are adopted in full; 11 2. The petition for writ of habeas corpus is denied with prejudice; 12 3. The Clerk of Court is directed to enter judgment and close the case; and 13 4. Petitioner’s application for a certificate of appealability, (Doc. No. 19), is denied. 14 This order terminates the action in its entirety. 15 16 IT IS SO ORDERED. 17 | Dated: _February 27, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28