(HC) Vela v. Montgomery

Opinion

MANUEL A. VELA, No. 1:20-cv-00588-JLT-EPG-HC Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT W.L. MONTGOMERY, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. 28) On January 25, 2022, the assigned magistrate judge issued findings and recommendations recommending that the petition for writ of habeas corpus be denied. (Doc. 28.) The Court served findings and recommendations on the parties and contained notice that any objections thereto were to be filed within thirty days after service. To date, no objections have been filed, and the time for doing 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 the case. Having carefully reviewed the entire file, the Court holds the findings and recommendations to be supported by the record and proper analysis. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue a certificate of appealability “if jurists of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 US. at 338. The court finds that reasonable jurists would not find the court’s determination that the petition should be denied debatable or wrong, or that the issues presented are deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Therefore, the court declines to issue a certificate of appealability. Accordingly, 1. The findings and recommendations issued on January 25, 2022 (Doc. 28) are adopted in full. 2. The petition for writ of habeas corpus is denied. 3. The Clerk of Court is directed to close the case; and 4. The Court declines to issue a certificate of appealability. Dated: _March 15, 2022 Charis [Tourn TED STATES DISTRICT JUDGE