(HC) Vera v. Pfeiffer ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G. MEMO VERA, No. 1:23-cv-00884-KES-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 CHRISTIAN PFEIFFER, HABEAS CORPUS WITHOUT PREJUDICE, DENYING PETITIONER’S MOTION TO 15 Respondent. AMEND FINDINGS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 16 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 17 (Docs. 9, 17, 20) 18 19 Petitioner G. Memo Vera is a state prisoner proceeding pro se with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On January 18, 2024,1 the assigned magistrate judge issued findings and recommendations 23 recommending that respondent’s motion to dismiss be granted and the petition be dismissed 24 without prejudice for failure to exhaust state judicial remedies. Doc. 17. The findings and 25 recommendations were served on the parties and contained notice that any objections were to be 26 filed within thirty (30) days of the date of service of the findings and recommendations. Id. On 27 February 2, 2024, petitioner filed timely objections. Doc. 19. On February 12, 2024, petitioner 28 1 The findings and recommendations were signed on January 17, 2024, but not docketed until January 18, 2024. 1 filed a motion to amend the findings and recommendation. Doc. 20. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de 3 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 4 court holds the findings and recommendations to be supported by the record and proper analysis. 5 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 6 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 7 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is allowed 8 only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 9 § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 10 the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 11 of reason would find it debatable whether the petition states a valid claim of the denial of a 12 constitutional right and that jurists of reason would find it debatable whether the district court was 13 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 14 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 15 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 16 that the petitioner should be allowed to proceed further.” Id. 17 In the present case, the court finds that reasonable jurists would not find the Court’s 18 determination that the petition should be dismissed debatable, wrong, or deserving of 19 encouragement to proceed further. Therefore, the court declines to issue a certificate of 20 appealability. 21 Accordingly: 22 1. The findings and recommendations issued on January 18, 2024, Doc. 17, are adopted 23 in full; 24 2. Respondent’s motion to dismiss, Doc. 9, is granted; 25 3. Petitioner’s motion to amend the findings, Doc. 20, is denied; 26 4. The petition for writ of habeas corpus is dismissed without prejudice; 27 /// 28 /// 1 5. The Clerk of Court is directed to close the case; and 2 6. The court declines to issue a certificate of appealability. 3 4 5 | ISSO ORDERED. _ 6 Dated: _ September 30, 2024 4h ; UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28