(HC)Orta v. Arviza ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOIS JOCHINTO ORTA, No. 1:23-cv-00588-JLT-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 M.ARVIZA, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 15 Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. 11, 16) 17 18 Lois Jochinto Orta is a federal prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2241. 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 The magistrate judge issued Findings and Recommendations that concluded that the Court 22 should grant Respondent’s motion to dismiss and dismiss the petition for lack of jurisdiction. 23 (Doc. 16.) Petitioner filed timely objections. (Doc. 17.) 24 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 25 case. Having carefully reviewed the entire file, including Petitioner’s objections, the Court 26 concludes the findings and recommendations are supported by the record and proper analysis. 27 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 28 whether a certificate of appealability (“COA”) should issue. See Harrison v. Ollison, 519 F.3d 1 | 952, 958 (9th Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a 2 | ‘disguised’ § 2255 motion, the petitioner cannot appeal from the denial of that petition without a 3 | COA.”). A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 4 | district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 5 | Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. To obtain a certificate of 6 | appealability under 28 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the 7 | denial of a constitutional right, . . . includ[ing] showing that reasonable jurists could debate 8 | whether (or, for that matter, agree that) the petition should have been resolved in a different 9 | manner or that the issues presented were ‘adequate to deserve encouragement to proceed 10 | further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 11 | 880, 893 & n.4 (1983)). 12 In the present case, the Court finds that reasonable jurists would not find the Court’s 13 | determination that the petition should be dismissed debatable or wrong, or that Petitioner should 14 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 15 | Accordingly, the Court ORDERS: 16 1. The findings and recommendations issued on January 8, 2024 (Doc. 16) are 17 ADOPTED IN FULL. 18 2. Respondent’s motion to dismiss (Doc. 11) is GRANTED. 19 3. The petition for writ of habeas corpus is DISMISSED. 20 4. The Clerk of Court is directed to CLOSE THE CASE. 21 5. The Court DECLINES to issue a certificate of appealability. 22 73 IT IS SO ORDERED. 24 | Dated: _ February 24, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 25 26 27 28