(HC) Garcia v. Montgomery ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHNNY GARCIA, No. 1:23-cv-00082-JLT-SAB (HC) 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 13 W.L. MONTGOMERY, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 14 Respondent. CERTIFICATE OF APPEALABILITY 15 (Doc. 7) 16 The magistrate judge issued findings and recommendations recommending that the 17 petition for writ of habeas corpus be dismissed for failure to state claims with sufficient 18 specificity. (Doc. 7.) The findings and recommendations were served on Petitioner and contained 19 notice that any objections were to be filed within 30 days of the date of service of the findings and 20 recommendations. Petitioner has not filed objections, and the time for doing so has passed. 21 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the case. 22 Having carefully reviewed the entire file, the Court concludes that the findings and 23 recommendation to be supported by the record and proper analysis. 24 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 25 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 26 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 27 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 28 1 | 2253. The Court should issue a certificate of appealability if “reasonable jurists could debate 2 | whether (or, for that matter, agree that) the petition should have been resolved in a different 3 | manner or that the issues presented were ‘adequate to deserve encouragement to proceed 4 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 5 | 880, 893 & n.4 (1983)). 6 The Court finds that reasonable jurists would not find the Court’s determination that the 7 | petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 8 | further. Therefore, the Court declines to issue a certificate of appealability. Thus, the Court 9 | ORDERS: 10 1. The findings and recommendations issued on April 6, 2023 (Doc, 7) are ADOPTED 11 IN FULL. 12 2. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. 13 3. The Clerk of Court is directed to CLOSE THE CASE. 14 4. The Court DECLINES to issue a certificate of appealability. 15 16 IT IS SO ORDERED. 17 | Dated: _June 19, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28