(HC) Herrera v. Gibson

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RUBEN HERRERA, JR., No. 1:21-cv-00296-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF 14 v. COURT TO ASSIGN A DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND 15 THEN CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [16] CONNIE GIBSON, (Doc. No. 17) [17] Respondent. [19] 20 Petitioner Ruben Herrera, Jr., is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 23 On June 8, 2021, the assigned magistrate judge issued findings and recommendations 24 recommending that respondent’s motion to dismiss be granted and that the pending petition be 25 dismissed as time–barred under the applicable statute of limitations. (Doc. Nos. 15, 17.) Those 26 findings and recommendations were served upon all parties and contained notice that any 27 objections thereto were to be filed within twenty-one (21) days after service. On July 1, 2021, 28 petitioner filed objections to the findings and recommendations. (Doc. No. 18.) 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court concludes that the magistrate judge’s findings and recommendations are 4 supported by the record and proper analysis. 5 In addition, the court declines to issue a certificate of appealability. A state prisoner 6 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 7 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 8 U.S. 322, 335-336 (2003); 28 U.S.C. § 2253 . If a court denies a petitioner’s petition, the court 9 may only issue a certificate of appealability when a petitioner makes a substantial showing of the 10 denial of a constitutional right. 28 U.S.C. § 2253 (c)(2). To make a substantial showing, the 11 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 12 that) the petition should have been resolved in a different manner or that the issues presented 13 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473 , 14 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 15 In the present case, the court finds that petitioner has not made the required substantial 16 showing of the denial of a constitutional right to justify the issuance of a certificate of 17 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 18 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 19 proceed further. Thus, the court declines to issue a certificate of appealability. 20 Accordingly, 21 1. The findings and recommendations issued on June 8, 2021, (Doc. No. 17), are 22 adopted in full; 23 2. Respondent’s motion to dismiss (Doc. No. 11), is granted; 24 3. The petition for writ of habeas corpus is dismissed with prejudice; 25 ///// 26 ///// 27 ///// 28 ///// 1 4. The Clerk of the Court is directed to assign a district judge to this case for the 2 || purpose of closing the case and then to close the case; and 3 5. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ September 27, 2021 Sea 1" S098 6 UNITED STATES DISTRICT JUDGE