(HC) Trevino v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT TREVINO, No. 1:22-cv-00136-AWI-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 13) 13 ORDER DISMISSING PETITION FOR 14 v. WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO 15 ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE 16 CERTIFICATE OF APPEALABILITY THERESA CISNEROS, Warden, 17 Respondent. 18 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 21 habeas corpus pursuant to 28 U.S.C. § 2254. On February 7, 2022, the Magistrate Judge assigned 22 to the case issued Findings and Recommendation to summarily dismiss the petition as successive 23 and for failure to state a cognizable claim. (Doc. No. 13.) This Findings and Recommendation 24 was served upon all parties and contained notice that any objections were to be filed within thirty 25 (30) days from the date of service of that order. On February 22, 2022, Petitioner filed objections 26 to the Magistrate Judge’s Findings and Recommendations. (Doc. No. 14.) 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 28 de novo review of the case. In his objections, Petitioner attempts to recharacterize his petition as 1 one “actually challenging the Commissioner’s decision to deny parole . . . .” (Doc. 14 at 2.) Such 2 claims are foreclosed by the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. 216 3 (2011). Accordingly, having carefully reviewed the entire file, including Petitioner's objections, 4 the Court concludes that the Magistrate Judge’s Findings and Recommendation is supported by 5 the record and proper analysis. Petitioner's objections present no grounds for questioning the 6 Magistrate Judge's analysis. 7 In addition, the Court declines to issue a certificate of appealability. A state prisoner 8 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 9 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 10 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 11 appealability is 28 U.S.C. § 2253, which provides as follows: 12 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit 13 in which the proceeding is held. 14 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person 15 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 16 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 17 not be taken to the court of appeals from— 18 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 19 (B) the final order in a proceeding under section 2255. 20 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 21 made a substantial showing of the denial of a constitutional right. 22 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 23 24 If a court denies a petitioner’s petition, the court may only issue a certificate of 25 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 26 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 27 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 28 been resolved in a different manner or that the issues presented were ‘adequate to deserve 1 | encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 2 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 3 In the present case, the Court finds that Petitioner has not made the required substantial 4 | showing of the denial of a constitutional right to justify the issuance of a certificate of 5 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 6 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 7 | proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The Findings and Recommendations, filed February 7, 2022 (Doc. No. 13), is 10 ADOPTED IN FULL; 11 2. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; 12 3. The Clerk of Court is directed to ENTER JUDGMENT AND CLOSE THE CASE; 13 and, 14 4. The Court DECLINES to issue a certificate of appealability. 15 16 IT IS SO ORDERED. 17 | Dated: __February 28, 2022 —. 7 □ Z Cb Led — SENIOR DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28