(HC) Delgado v. McDowell

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EZEKIEL ISIAH DELGADO, No. 2:21-cv-1084-TLN-DB 12 Petitioner, 13 v. ORDER 14 NEIL McDOWELL, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 6, 2023, the magistrate judge filed findings and recommendations herein which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within thirty days. Petitioner has filed objections 23 to the findings and recommendations. 24 In addition to objecting to the findings and recommendations, Petitioner argues he is 25 entitled to a certificate of appealability under 28 U.S.C. § 2253 with respect to his Miranda and 26 voluntariness claims, and his claim that there was constitutionally insufficient evidence of 27 premeditation and deliberation. A certificate of appealability may issue under 28 U.S.C. § 2253 28 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 1 | US.C. § 2253(c)(2). The certificate of appealability must “indicate which specific issue or issues 2 | satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 3 A certificate of appealability should be granted for any issue that petitioner can 4 | demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 5 | court or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 290 6 | F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). The 7 | Court finds that Petitioner has made a “substantial showing of the denial of a constitutional right” 8 | with respect to his claim that his statements to police were obtained in violation of his rights 9 | under Miranda v. Arizona, 396 U.S. 868 (1969). 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 11 | Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 12 | Court finds the findings and recommendations to be supported by the record and by proper 13 analysis. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed June 6, 2023 (ECF No. 36) are ADOPTED IN 16 FULL; 17 2. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is DENIED; and 18 3. The Court issues the certificate of appealability referenced in 28 U.S.C. § 2253 with 19 respect to Petitioner’s claim that his statements to police were obtained in violation of his 20 Miranda rights. 21 | Date: August 10, 2023 22 yy / 23 “ \/ of 24 oN _Z Troy L. Nunley } 25 United States District Judge 26 27 28