(HC) Ponce v. Covello ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY PONCE SR., No. 1:22-cv-00978-KES-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 PATRICK COVELLO, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF No. 24) 16 17 18 Tommy Ponce Sr. (“Petitioner”) is a state prisoner proceeding pro se with a petition for 19 writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 4, 2023, the Magistrate Judge issued findings and recommendations 22 recommending that the petition for writ of habeas corpus be denied. (ECF No. 24.) The findings 23 and recommendations were served on the parties and contained notice that any objections were to 24 be filed within thirty (30) days of the date of service of the findings and recommendations. (Id. at 25 25.) To date, no objections have been filed, and the time for doing so has passed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 27 novo review of the case. Having carefully reviewed the case filings, the Court holds the findings 28 and recommendations to be supported by the record and proper analysis. 1 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 2 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 3 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 4 | allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 5 | U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may issue a certificate 6 | of appealability “if jurists of reason could disagree with the district court’s resolution of [the 7 || petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 8 || to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see also Slack v. 9 | McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of 10 | his case, he must demonstrate “something more than the absence of frivolity or the existence of 11 | mere good faith on his .. . part.” Miller-El, 537 U.S. at 338. 12 In the present case, the Court finds that reasonable jurists would not find the Court’s 13 | determination that the petition should be denied debatable or wrong, or that Petitioner should be 14 | allowed to proceed further. Petitioner has not made the required substantial showing of the denial 15 | of aconstitutional right. Therefore, the Court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on December 4, 2023, (ECF No. 24), are 18 adopted in full; 19 2. The petition for writ of habeas corpus is denied; 20 3. The Clerk of Court is directed to close the case; and 21 4. The Court declines to issue a certificate of appealability. 22 23 94 | □□ □□ SO ORDERED. _ 25 Dated: _ March 21, 2024 4h UNITED STATES DISTRICT JUDGE 27 28