(HC) Castillo-Chavez v. Warden at U.S. Penitentiary Atwater ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO CASTILLO-CHAVEZ, No. 1:24-cv-00037 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 5) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 WARDEN, USP ATWATER, ORDER DECLINING TO ISSUE 17 Respondent. CERTIFICATE OF APPEALABILITY 18 19 Gerardo Castillo-Chavez is a federal prisoner proceeding pro se and in forma pauperis 20 with a petition for writ of habeas corpus, challenging his conviction and sentence pursuant to 28 21 U.S.C. § 2241. (Doc. 1.) The magistrate judge determined the Court lacked jurisdiction over 22 Petitioner’s claims, and recommended the petition be dismissed. (Doc. 5) 23 The Court served the Findings and Recommendations on Petitioner and notified him that 24 any objections were due within 21 days. (Doc. 8 at 5.) The Court advised him the “failure to file 25 objections within the specified time may waive the right to appeal the Order of the District 26 Court.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).) Petitioner did not file 27 objections, and the time to do so has passed. 28 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 1 case. Having carefully reviewed the matter, the Court concludes the Findings and 2 Recommendations are supported by the record and proper analysis. 3 In addition, the Court declines to issue a certificate of appealability. A prisoner seeking a 4 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 5 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335- 6 336 (2003). A certificate of appealability is required for a successive § 2255 motion that is 7 disguised as a § 2241 petition. Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. 8 Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). The controlling statute in determining whether to 9 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 10 (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 11 appeals for the circuit in which the proceeding is held. 12 (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 13 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. 14 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 15 appeal may not be taken to the court of appeals from— 16 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 17 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 denial of a constitutional 20 right. 21 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 22 23 If a court denies a petition, the court may only issue a certificate of appealability when a 24 petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 25 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 26 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 27 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 28 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 1 | 880, 893 (1983)). 2 In the present case, the Court finds Petitioner did not make the required substantial 3 | showing of the denial of a constitutional right to justify the issuance of a certificate of 4 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 5 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 6 | proceed further. Thus, the Court declines to issue a certificate of appealability. Based on the 7 | foregoing, the Court ORDERS: 8 1. The Findings and Recommendations issued on January 10, 2024 (Doc. 5) are 9 ADOPTED in full. 10 2. The petition for writ of habeas corpus is DISMISSED with prejudice. 11 3. The Clerk of Court is directed to enter judgment and close the case. 12 4. 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: _ February 14, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28