(HC) Castaneda v. Muniz

Opinion

JESUS RICARDO CASTANEDA, No. 1:19-cv-01327-DAD-JLT (HC) Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING W.L. MUNIZ, HABEAS PETITION FOR FAILURE TO PROESCUTE AND TO COMPLY WITH A Respondent. COURT ORDER (Doc. No. 13) Petitioner Jesus Ricardo Castaneda is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On October 10, 2019, the court granted petitioner’s request for a stay of this case pending exhaustion of his claims in state court (Doc. No. 5), and on April 7, 2020, petitioner filed a motion to lift the stay (Doc. No. 10), which the court granted on May 7, 2020 (Doc. No. 11). In the court’s order lifting the stay, petitioner was directed to file an amended petition within thirty (30) days. (Doc. No. 11 at 2.) Despite that order, petitioner did not file an amended petition or otherwise communicate with the court. ///// Accordingly, on June 25, 2020, the assigned magistrate judge issued findings and recommendations recommending that the petition be dismissed due to petitioner’s failure to obey the court’s order directing him to file an amended petition and failure to prosecute this habeas action. (Doc. No. 13.) The findings and recommendations were served upon petitioner and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 3.) To date, petitioner has not filed any objections and the time in which to do so has passed.1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the pending findings and recommendations are supported by the record and proper analysis. Having concluded that the pending petition must be dismissed, the court also declines to issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the court should issue a certificate of appealability “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists would not find the court’s determination that the pending petition must be dismissed to be debatable or wrong. Thus, the court declines to issue a certificate of appealability. ///// /////

1 Both the May 7, 2020 order and the June 25, 2020 findings and recommendations were served on petitioner by mail at his address of record, and neither were returned to the court as undeliverable. wOoOw 4:49 VV VELVET OMAR VR MMVUEEOCTEL tor POM □□□ □□□ FP OAyt Ve VI

Accordingly, 1. The findings and recommendations issued on June 25, 2020 (Doc. No. 13) are adopted in full; 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 3. The court declines to issue a certificate of appealability; and 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. a Li. wh F Dated: _ August 11, 2020 wee TE OO UNITED STATES DISTRICT JUDGE