(HC) Reyes v. Cisneros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OSBALDO REYES, No. 1:22-cv-01490-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (ECF No. 7) 14 v. ORDER DISMISSING PETITION FOR WRIT 15 OF HABEAS CORPUS 16 ORDER DIRECTING CLERK OF COURT TO THERESA CISNEROS, ENTER JUDGMENT AND CLOSE CASE 17 Respondent. ORDER DECLINING TO ISSUE 18 CERTIFICATE OF APPEALABILITY 19 20 Petitioner Osbaldo Reyes (“Petitioner”) is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302. 24 On January 17, 2023, the assigned Magistrate Judge issued findings and recommendations 25 to dismiss the petition for lack of jurisdiction. (ECF No. 7.) Those findings and recommendations 26 were served upon all parties and contained notice that any objections thereto were to be filed within 27 twenty-one days after service. (Id. at 2.) No objections have been filed, and the deadline to do so 28 has expired. 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 the case. Having carefully reviewed the entire file, the Court concludes that the 3 Magistrate Judge’s findings and recommendations are supported by the record and proper analysis. 4 In addition, the Court declines to issue a certificate of appealability. A state prisoner 5 seeking a writ of habeas corpus has no absolute entitlement to appeal a district Court’s denial of 6 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 7 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 8 appealability is 28 U.S.C. § 2253, which provides as follows: 9 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 10 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. 11 (b) There shall be no right of appeal from a final order in a proceeding to test 12 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 13 the validity of such person's detention pending removal proceedings. 14 (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— 15 (A) the final order in a habeas corpus proceeding in which the 16 detention complained of arises out of process issued by a State Court; or 17 (B) the final order in a proceeding under section 2255. 18 (2) A certificate of appealability may issue under paragraph (1) only if the 19 applicant has made a substantial showing of the denial of a constitutional right. 20 (3) The certificate of appealability under paragraph (1) shall indicate which 21 specific issue or issues satisfy the showing required by paragraph (2). 22 If a Court denies a petitioner’s petition, the Court may only issue a certificate of 23 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 24 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 25 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 26 been resolved in a different manner or that the issues presented were ‘adequate to deserve 27 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 28 1 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 2 In the present case, the Court finds that petitioner has not made the required substantial 3 | showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. 4 | Reasonable jurists would not find the Court’s determination that petitioner is not entitled to federal 5 | habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, 6 | the Court declines to issue a certificate of appealability. 7 Accordingly, 8 1. The findings and recommendations issued on January 17, 2023, (ECF No. 7), are 9 adopted in full; 10 2. The petition for writ of habeas corpus is dismissed with prejudice; 11 3. The clerk of Court is directed to enter judgment and close the case; and 12 4. The Court declines to issue a certificate of appealability. 13 This order terminates the action in its entirety. 14 15 16 | IT IS SO ORDERED. 17 Dated: _ March 10, 2023 is UNITED fTATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28