(HC) Diaz v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO DIAZ, No. 1:23-cv-01783-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 v. CERTIFICATE OF APPEALABILITY, AND DIRECTING CLERK OF COURT TO ENTER 15 JUDGMENT AND CLOSE CASE

16 (Docs. 1, 16) RYAN ANDERSON, 17 Respondent. 18

19 Petitioner Antonio Diaz is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On May 16, 2024, the assigned magistrate judge issued findings and recommendations to 23 deny the petition on its merits. Doc. 16. Those findings and recommendations were served upon 24 all parties and contained notice that any objections thereto were to be filed within thirty (30) days 25 after service. No objections have been filed, and the deadline to do so has expired. 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 file, the court concludes that the 28 1 magistrate judge’s findings and recommendations are supported by the record and proper 2 analysis. 3 In addition, the court declines to issue a certificate of appealability. A state prisoner 4 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 5 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 6 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 7 appealability is 28 U.S.C. § 2253, which provides as follows:

8 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of 9 appeals for the circuit in which the proceeding is held.

10 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 11 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 12 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 13 appeal may not be taken to the court of appeals from—

14 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 15 court; or

16 (B) the final order in a proceeding under section 2255.

17 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 18 right.

19 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 20 21 If a court denies a petitioner’s petition, the court may issue a certificate of appealability 22 only when a petitioner makes a substantial showing of the denial of a constitutional right. 28 23 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 24 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 25 been resolved in a different manner or that the issues presented were ‘adequate to deserve 26 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 27 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 28 In the present case, the court finds that petitioner has not made the required substantial 1 | showing of the denial of a constitutional right to justify the issuance of a certificate of 2 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 3 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 4 | proceed further. Thus, the court declines to issue a certificate of appealability. 5 Accordingly, 6 1. The findings and recommendations issued on May 16, 2024, Doc. 16, are 7 ADOPTED IN FULL; 8 2. The petition for writ of habeas corpus is DENIED; 9 3. The Clerk of Court is directed to enter judgment and close the case; and 10 4. The court declines to issue a certificate of appealability. 11 12 13 | □□ □□ SO ORDERED. _ 14 Dated: _ September 30, 2024 4h UNITED STATES DISTRICT JUDGE

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