(HC) Martinez v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS MARTINEZ, No. 1:23-cv-00243-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 14) 14 v. ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING 15 PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF 16 COURT TO ENTER JUDGMENT AND KATHLEEN ALLISON, Secretary, CLOSE CASE 17 (Doc. 11) Respondent. 18 ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 19 20 Carlos Martinez is a state prisoner proceeding pro se and in forma pauperis with a petition 21 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 The assigned Magistrate Judge issued Findings and Recommendations to grant 24 Respondent’s motion to dismiss and dismiss the petition for failing to present any cognizable 25 grounds for relief, failing to invoke subject matter jurisdiction, and violating the statute of 26 limitations. (Docs. 11, 14.) Petitioner filed objections to the Findings and Recommendations. 27 (Doc. 15.) Respondent did not file a reply. 28 According to 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a de novo review of the 1 case. Having carefully reviewed the entire file, including Petitioner's objections, the Court 2 concludes that the Magistrate Judge’s Findings and Recommendations are supported by the 3 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 7 U.S. 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 district judge, the final order shall be subject to review, on appeal, by the court of 10 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 the validity of a warrant to remove to another district or place for commitment or 12 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 13 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 14 appeal may not be taken to the court of appeals from— 15 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 16 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 applicant has made a substantial showing of the denial of a constitutional 19 right. 20 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 21 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 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 1 In the present case, the Court finds that Petitioner has not made the required substantial 2 | showing of the denial of a constitutional right to justify the issuance of a certificate of 3 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 4 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 5 | proceed further. Thus, the Court declines to issue a certificate of appealability. Accordingly, the 6 | Court ORDERS: 7 1. The Findings and Recommendations issued on June 1, 2023, (Doc. 14), are 8 adopted in full. 9 2. Respondent’s motion to dismiss (Doc. 11), is granted. 10 3. The petition for writ of habeas corpus is dismissed with prejudice. 11 4. The Clerk of Court is directed to enter judgment and close the case; and 12 5. The Court declines to issue a certificate of appealability. 13 This order terminates the action in its entirety. 14 15 IT IS SO ORDERED. 16 Dated: _ September 27, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28