(HC) Rubio v. Phillips ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS RUBIO, No. 1:23-cv-00768-JLT-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 BRIAN PHILLIPS, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 6) 16 17 Jose Luis Rubio is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 16, 2023, the magistrate judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be dismissed without prejudice for 22 failure to state a cognizable federal habeas claim. (Doc. 6.) On October 16, 2023, Petitioner filed 23 timely objections. (Doc. 11.) 24 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 25 case. Having carefully reviewed the entire file, including Petitioner’s objections, the Court 26 concludes that the findings and recommendations are supported by the record and proper analysis. 27 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 28 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 1 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 2 | allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 3 | § 2253. The Court should issue a certificate of appealability if “reasonable jurists could debate 4 | whether (or, for that matter, agree that) the petition should have been resolved in a different 5 || manner or that the issues presented were ‘adequate to deserve encouragement to proceed 6 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 7 | 880, 893 & n.4 (1983)). 8 In the present case, the Court finds that reasonable jurists would not find the Court’s 9 | determination that the petition should be dismissed debatable or wrong, or that Petitioner should 10 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 11 | Accordingly, the Court ORDERS: 12 1. The findings and recommendations issued on June 16, 2023 (Doc. 6) are ADOPTED 13 IN FULL. 14 2. The petition for writ of habeas corpus is DISMISSED. 15 3. The Clerk of Court is directed to CLOSE THE CASE. 16 4. The Court declines to issue a certificate of appealability. 17 18 IT IS SO ORDERED. 19 | Dated: _November 19, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28