(HC)Rodriguez v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE RODRIGUEZ, No. 1:22-cv-00857-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. No. 20) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO 16 ENTER JUDGMENT AND CLOSE CASE KATHLEEN ALLISON, Secretary of 17 C.D.C.R., ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 18 Respondent. 19 20 Petitioner Jorge Rodriguez is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On July 20, 2022, the assigned magistrate judge issued findings and recommendations to 24 dismiss the petition as unexhausted and for failure to state a colorable claim for relief. (Doc. No. 25 20.) Those findings and recommendations were served upon all parties and contained notice that 26 any objections thereto were to be filed within thirty (30) days after service. On August 3, 2022, 27 petitioner filed objections to the findings and recommendations. (Doc. No. 22.) 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 1 de novo review of the case. In his objections, petitioner contends the petition was improperly 2 transferred to the Eastern District from the Northern District insofar as venue was proper in the 3 Northern District. Petitioner challenges three convictions sustained while imprisoned. Two out 4 of the three convictions were sustained in Kern County, which lies within the jurisdiction of this 5 court. Thus, venue is proper here as to those convictions. As to his Monterey County conviction, 6 petitioner was advised in the order of transfer to file a separate petition challenging only that 7 conviction in the Northern District. 8 Petitioner also contends his claims are fully exhausted, having sought relief at all levels of 9 the state courts. Assuming petitioner has fully exhausted his claims, the magistrate judge 10 correctly found them to be not colorable. The multiple convictions sustained while petitioner was 11 imprisoned do not violate the Fifth Amendment guarantee against double jeopardy because each 12 are for separate offenses. Petitioner argues that he cannot be sentenced to consecutive sentences 13 for offenses he committed while in prison. This is incorrect; there is no prohibition on 14 consecutive sentences for offenses committed in prison. In addition, the magistrate judge 15 correctly determined that petitioner’s sentences of two years for possessing a weapon in prison in 16 2019, four years for battery by a prisoner in 2015, one year for possessing a weapon in prison in 17 2015, and two years for battery on a non-confined person in 2015, do not present colorable claims 18 of cruel and unusual punishment under the Eighth Amendment. (Doc. No. 12 at 11-13.) 19 Having carefully reviewed the entire file, including petitioner’s objections, the court 20 concludes that the magistrate judge’s findings and recommendations are supported by the record 21 and proper analysis. Petitioner’s objections present no grounds for questioning the magistrate 22 judge’s analysis. 23 In addition, the court declines to issue a certificate of appealability. A state prisoner 24 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 25 his petition, and an appeal is allowed in only certain circumstances. Miller-El v. Cockrell, 537 26 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 27 appealability is 28 U.S.C. § 2253, which provides as follows: 28 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 1 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test 3 the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test 4 the validity of such person’s detention pending removal proceedings. 5 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 6 (A) the final order in a habeas corpus proceeding in which the 7 detention complained of arises out of process issued by a State court; or 8 (B) the final order in a proceeding under section 2255. 9 (2) A certificate of appealability may issue under paragraph (1) only if the 10 applicant has made a substantial showing of the denial of a constitutional right. 11 (3) The certificate of appealability under paragraph (1) shall indicate which 12 specific issue or issues satisfy the showing required by paragraph (2). 13 If a court denies a petitioner’s petition, the court may issue a certificate of appealability 14 only when a petitioner makes a substantial showing of the denial of a constitutional right. 28 15 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 16 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 17 been resolved in a different manner or that the issues presented were ‘adequate to deserve 18 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 19 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 20 In the present case, the court finds that petitioner has not made the required substantial 21 showing of the denial of a constitutional right to justify the issuance of a certificate of 22 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 23 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 24 proceed further. Thus, the court declines to issue a certificate of appealability. 25 Accordingly, 26 1. The findings and recommendations issued on July 20, 2022, (Doc. No. 20) are 27 adopted in full; 28 1 2. The petition for writ of habeas corpus is dismissed with prejudice; 2 3. The clerk of court is directed to enter judgment and close the case; and 3 4. The court declines to issue a certificate of appealability. 4 This order terminates the action in its entirety. 5 6 7 | ITISSO ORDERED. 8 Dated: _ September 14, 2022 9 UNITED fTATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28