(HC) Tirado v. Taylor

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY ROBERT TIRADO, No. 1:24-cv-01069-KES-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 TIMOTHY TAYLOR, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 4) 16

17 18 Petitioner Anthony Robert Tirado is a federal prisoner proceeding pro se with a petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On October 8, 2024, the assigned magistrate judge issued findings and recommendations 22 that recommended dismissing the petition. Doc. 4. The findings and recommendations were 23 served on petitioner and contained notice that any objections were to be filed within thirty (30) 24 days of the date of service of the findings and recommendations. Id. To date, no objections have 25 been filed, and the time for doing so has passed. 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 holds the findings and 28 recommendations to be supported by the record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the Court now turns to 2 | whether a certificate of appealability (“COA”) should issue. See Harrison vy. Ollison, 519 F.3d 3 | 952, 958 (9th Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a 4 | ‘disguised’ § 2255 motion, the petitioner cannot appeal from the denial of that petition without a 5 | COA.”). A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 6 | district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 7 | Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. To obtain a certificate of 8 || appealability under 28 U.S.C. § 2253(c), a petitioner “must make a substantial showing of the 9 | denial of a constitutional right, . . . includ[ing] showing that reasonable jurists could debate 10 | whether (or, for that matter, agree that) the petition should have been resolved in a different 11 || manner or that the issues presented were ‘adequate to deserve encouragement to proceed 12 | further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 13 | 880, 893 & n.4 (1983)). 14 In the present case, the Court finds that reasonable jurists would not find the Court’s 15 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 16 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 17 Accordingly: 18 1. The findings and recommendations issued on October 8, 2024, Doc. 4, are ADOPTED 19 in full; 20 2. The petition for writ of habeas corpus is DISMISSED; 21 3. The Clerk of Court is directed to close the case; and 22 4. The Court declines to issue a certificate of appealability. 23 24 95 | IT ISSO ORDERED. _ 26 Dated: _ December 19, 2024 4h 37 UNITED STATES DISTRICT JUDGE