(HC) Lupercio v. Flier

Opinion

1 2 3 4 5 6 7 10 11 RAMON NAVARRO LUPERCIO, No. 1:23-cv-00821-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A 14 ATTORNEY, ANDREW, and FLIER, CERTIFICATE OF APPEALABILITY 15 Respondents. (ECF No. 16) 16 17 Petitioner Ramon Navarro Lupercio is a state prisoner proceeding pro se and in forma 18 pauperis with this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter 19 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 20 Rule 302. 21 On May 31, 2023, the Magistrate Judge issued findings and recommendations, 22 recommending that the Court dismiss the petition as successive. (ECF No. 16.) The findings and 23 recommendations contained notice that Petitioner had twenty-one days within which to file 24 objections. (Id. at 3.) That deadline has passed, and Petitioner has not filed objections. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 26 de novo review of this case. Having carefully reviewed the entire file, the Court concludes that 27 the findings and recommendations are supported by the record and proper analysis. 28 /// 1 The Court also declines to issue a certificate of appealability. A state prisoner seeking a 2 || writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 3 | and an appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335— 4 | 36 (2003). Where, as here, a court denies habeas relief on procedural grounds without reaching 5 | the underlying constitutional claims, the court should issue a certificate of appealability only “if 6 | jurists of reason would find it debatable whether the petition states a valid claim of the denial of a 7 | constitutional right and that jurists of reason would find it debatable whether the district court was 8 || correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court 9 | finds that reasonable jurists would not find the Court’s decision to dismiss the petition debatable 10 | or wrong, or that petitioner should be allowed to proceed further. 11 Accordingly, 12 1. The findings and recommendations issued on May 31, 2023, (ECF No. 16), are 13 adopted in full; 14 2. The petition for writ of habeas corpus is dismissed; 15 3. The Clerk of Court is directed to enter judgment and close the case; and 16 4. The Court declines to issue a certificate of appealability. 17 18 19 | IT IS SO ORDERED. 20 Dated: _ August 22, 2023 UNITED f£TATES DISTRICT JUDGE

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