(HC) Moreno v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE MORENO, No. 1:22-cv-00851-JLT-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITIONER’S MOTION TO STAY, DISMISSING PETITION FOR WRIT OF 14 KATHLEEN ALLISON, HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE 15 Respondent. CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 (Docs. 14, 19) 17 18 The magistrate judge issued findings and recommendations that recommended denying 19 Petitioner’s motion to stay and dismissing the petition without prejudice for failure to exhaust 20 state judicial remedies. (Doc. 19.) Though Petitioner filed untimely objections to the findings and 21 recommendations (Doc. 29), in the interest of justice, the Court will consider Petitioner’s 22 untimely objections. 23 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 24 case. Having carefully reviewed the entire file, including Petitioner’s objections, the Court finds 25 the findings and recommendations to be supported by the record and proper analysis. Petitioner’s 26 objections do not meaningfully call into question the magistrate judge’s reasoning. For example, 27 Petitioner has requested a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), 28 while he exhausts his claims in state court. (Doc. 14.) The magistrate judge found that a Rhines 1 stay is not appropriate here in part because petitioner has not provided sufficient facts to allow the 2 court to determine that any of his claims are “potentially meritorious.” (Doc. 19 at 3–4.) In his 3 objections, Petitioner nonetheless asserts he is entitled to an evidentiary hearing so that the Court 4 can “find the facts of the case.” (Doc. 29.) Petitioner is mistaken. To be entitled to a Rhines stay, 5 a petitioner must do more at the outset than advance conclusory allegations. See, e.g., 6 Lesopravsky v. Warden, No. CV 16-7110-JPR, 2018 WL 2085333, at *7 (C.D. Cal. May 3, 2018) 7 (“Claims composed of vague and conclusory allegations unsupported by specific facts or 8 evidence are not potentially meritorious within the meaning of Rhines.”); Ramirez v. Borders, No. 9 SACV-16-00522-DSF (KES), 2017 WL 3841794, at *8 (C.D. Cal. May 9, 2017) (finding claim 10 “plainly meritless” under Rhines because “Petitioner failed to allege sufficient facts to state a 11 colorable claim for federal habeas relief”), adopted by 2017 WL 3841810 (C.D. Cal. Sep. 1, 12 2017); Taylor v. Paramo, No. EDCV 15-1496-JFW (KS), 2016 WL 3922055, at *7 (C.D. Cal. 13 June 3, 2016) (finding petitioner’s vague assertion of ineffective assistance of counsel plainly 14 meritless), adopted by 2016 WL 3922047 (C.D. Cal. July 20, 2016). 15 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 16 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 17 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 18 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 19 § 2253. Where, as here, the Court denies habeas relief on procedural grounds without reaching 20 the underlying constitutional claims, the Court should issue a certificate of appealability “if jurists 21 of reason would find it debatable whether the petition states a valid claim of the denial of a 22 constitutional right and that jurists of reason would find it debatable whether the district court was 23 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 24 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 25 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 26 that the petitioner should be allowed to proceed further.” Id. 27 The Court finds that reasonable jurists would not find the Court’s determination that the 28 petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 1 | further. Therefore, the Court declines to issue a certificate of appealability. Thus, the Court 2 | ORDERS: 3 1. The findings and recommendations issued on August 26, 2022 (Doc. 19) are 4 ADOPTED IN FULL. 5 2. Petitioner’s motion to stay (Doc. 14) is DENIED. 6 3. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. 7 4. The Clerk of Court is directed to CLOSE THE CASE. 8 5. The Court declines to issue a certificate of appealability. 9 10 IT IS SO ORDERED. Dated: _ January 30, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28