(HC) Mendoza v. Sherman

Opinion

CARLOS MENDOZA, No. 1:22-cv-00128-ADA-CDB (HC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING v. RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS Respondent. (ECF Nos. 16, 20) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Petitioner Carlos Mendoza is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 21, 2022, Respondent filed a motion to dismiss the petition as untimely, unexhausted, and for failure to state a cognizable claim. (ECF No. 16.) Petitioner did not file an opposition. On November 3, 2022, the Magistrate Judge issued findings and recommendations to grant Respondent’s motion to dismiss. (ECF No. 20.) The findings and recommendations were served on Petitioner with notice to file any objections within twenty-one days after service. (Id.) Petitioner did not file any objections, and the deadline to do so has passed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge’s findings regarding the untimeliness of Petitioner’s petition are supported by the record and proper analysis. Addressing the Magistrate Judge’s findings regarding exhaustion and Petitioner’s failure to state a cognizable claim because is unnecessary to the disposition of this case. In addition, the court declines to issue a certificate of appealability. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is not allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Upon denying a 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). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, the Court finds that Petitioner has not made the required substantial showing of a denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court declines to issue a certificate of appealability. /// /// /// /// /// /// /// Accordingly, 1. The findings and recommendations issued on November 3, 2022, (ECF No. 20), are adopted; 2. Respondent’s motion to dismiss, (ECF No. 16), is granted; 3. The petition for writ of habeas corpus is denied with prejudice; 4. The Clerk of Court is directed to enter judgment and close the case; and 5. The Court declines to issue a certificate of appealability. IT IS SO ORDERED. Dated: _ February 14, 2023 UNITED fTATES DISTRICT JUDGE