(HC) Jacobo v. Stanislaus County Superior Court ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGELO J. JACOBO IV, Case No. 1:22-cv-00022-AWI-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 STANISLAUS COUNTY SUPERIOR TO CLOSE CASE, AND DECLINING TO COURT, ISSUE A CERTIFICATE OF 15 APPEALABILITY Respondent. 16 (ECF No. 18) 17 18 Petitioner Angelo J. Jacobo IV is a state prisoner proceeding pro se with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 7, 2022,1 the Magistrate Judge issued Findings and Recommendation 22 recommending the petition be denied. (ECF No. 18.) The Findings and Recommendation was 23 served on the parties and contained notice that any objections were to be filed within thirty (30) 24 days of the date of service of the Findings and Recommendation. On December 8, 2022, the 25 Findings and Recommendation was returned as undeliverable.2 To date, no objections have been 26 filed, and the time for doing so has passed. 27 1 The Findings and Recommendation was signed on November 5, 2022, but not docketed until November 7, 2022. 2 Absent notice of a party’s change of address, service of documents at the prior address of the party is fully 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 2 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Findings and Recommendation is supported by the record and proper analysis and there is no 4 need to modify the Findings and Recommendation. 5 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 6 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 7 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 8 whether to issue a certificate of 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 10 review, on appeal, by the court of 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 12 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 13 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 14 (c) (1) Unless a circuit justice or judge issues a certificate of 15 appealability, an appeal may not be taken to the court of appeals from– 16 (A) the final order in a habeas corpus proceeding in which 17 the detention complained of arises out of process issued by a State court; or 18 (B) the final order in a proceeding under section 2255. 19 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the 20 denial of a constitutional right. 21 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing 22 required by paragraph (2). 23 28 U.S.C. § 2253. 24 If a court denies a habeas petition on the merits, the court may only issue a certificate of 25 appealability “if jurists of reason could disagree with the district court’s resolution of [the 26 petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 27 to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 1 | must demonstrate “something more than the absence of frivolity or the existence of mere good 2 | faith on his . . . part.” Miller-El, 537 U.S. at 338. 3 In the present case, the Court finds that reasonable jurists would not find the Court’s 4 | determination that Petitioner’s federal habeas corpus petition should be denied debatable or 5 | wrong, or that the issues presented are deserving of encouragement to proceed further. Therefore, 6 | the Court declines to issue a certificate of appealability. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Findings and Recommendation issued on November 7, 2022 (ECF No. 18) is 9 ADOPTED IN FULL; 10 2. The petition for writ of habeas corpus is DENIED; 11 3. The Clerk of Court is DIRECTED to CLOSE the case; and 12 4. The Court DECLINES to issue a certificate of appealability. 13 4 IT IS SO ORDERED. | Dated: _January 11, 2023 —. 7 LZ : 7 Cb ed — SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28