(HC)Nieto v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE NIETO, ) Case No.: 1:21-cv-1582 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, GRANTING 13 ) RESPONDENT’S MOTION TO DISMISS, ) DISMISSING PETITION FOR WRIT OF 14 v. ) HABEAS CORPUS, DIRECTING CLERK OF ) COURT TO CLOSE CASE, AND 15 THERESA CISNEROS, ) DECLINING TO ISSUE CERTIFICATE OF ) APPEALABILITY 16 Respondent. ) ) (Docs. 20, 23) 17 ) 18 The assigned magistrate judge issued Findings and Recommendations recommending that 19 Respondent’s Motion to Dismiss be granted, and the amended petition be dismissed as 20 unexhausted. (Doc. 23.) The Findings and Recommendations were served on all parties, and it 21 contained notice that any objections were to be filed within 14 days after service. In addition, the 22 court advised the parties that “failure to file objections within the specified time may result in the 23 waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 24 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Petitioner has not filed 25 objections, and the time for doing so has passed. 26 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 27 Having carefully reviewed the entire matter, the Court concludes the Findings and 28 Recommendations are supported by the record and proper analysis. 1 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 | district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 | Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 4 | petition on the merits, it may only issue a certificate of appealability “if jurists of reason could 5 || disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists 6 | could conclude the issues presented are adequate to deserve encouragement to proceed further.” 7 | Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is 8 | not required to prove the merits, he must demonstrate “something more than the absence of 9 | frivolity or the existence of mere good faith on his .. . part.” Miller-El, 537 U.S. at 338. 10 The Court finds that reasonable jurists would not find the determination that the Petition 11 | should be denied debatable or wrong, or that the issues presented are deserving of encouragement 12 | to proceed further. Petitioner has not made the required substantial showing of the denial of a 13 | constitutional right. Therefore, the Court declines to issue a certificate of appealability. Based 14 | upon the foregoing, the Court ORDERS: 15 1. The Findings and Recommendations issued on July 27, 2022 (Doc. 23), are 16 ADOPTED in full. 17 2. Respondent’s Motion to Dismiss (Doc. 20) is GRANTED. 18 3. The amended petition for writ of habeas corpus (Doc. 16) is DENIED. 19 4. The Court declines to issue a certificate of appealability. 20 5. The Clerk of the Court is directed to close the case. 21 IT IS SO ORDERED. 23 | Dated: _October 7, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 24 25 26 27 28