(HC)Sepeda v. Fresno County, California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY SEPEDA, No. 1:22-cv-00522-ADA-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 FRESNO COUNTY, CALIFORNIA, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF. No. 7) 16 17 Petitioner Tony Sepeda is a state prisoner proceeding pro se and in forma pauperis with a 18 petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 13, 2022,1 the assigned Magistrate Judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be dismissed without prejudice for 22 failure to exhaust state judicial remedies and failure to state a cognizable federal habeas claim. 23 (ECF No. 7.) The findings and recommendations were served on petitioner and contained notice 24 that any objections were to be filed within thirty (30) days of the date of service. To date, no 25 objections have been filed, and the time to do so has passed. 26 /// 27 28 1 The findings and recommendations were signed on July 12, 2022, but not docketed until July 13, 2022. 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 holds the findings 3 | and recommendations to be supported by the record and proper analysis. 4 Having found that petitioner is not entitled to habeas relief, the Court now turns to 5 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 6 | has no absolute entitlement to appeal a District Court’s denial of his petition, and an appeal is 7 | allowed in only certain circumstances. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 8 | 28 U.S.C. § 2253. The Court should issue a certificate of appealability if “reasonable jurists 9 | could debate whether (or, for that matter, agree that) the petition should have been resolved in a 10 | different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 11 further.’” Slack vy. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 12 | 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find 13 || the Court’s determination that the petition should be dismissed debatable or wrong, or that 14 | petitioner should be allowed to proceed further. Therefore, the Court declines to issue a 15 | certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on July 13, 2022 (ECF No. 7), are adopted 18 in full; 19 2. The petition for writ of habeas corpus is dismissed without prejudice; 20 3. The Clerk of Court is directed to close the case; and 21 4. The Court declines to issue a certificate of appealability. 22 23 94 | □□ □□ SO ORDERED. 25 Dated: _ October 5, 2022 UNITED fTATES DISTRICT JUDGE 27 28