(HC)Prado v. Cueva

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO PRADO, No. 1:23-cv-01521-KES-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 DANIEL E. CUEVA, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF No. 6) 16 17 Alejandro Prado (“Petitioner”) is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 30, 2023, the Magistrate Judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be dismissed for failure to state a 22 cognizable claim. (ECF No. 6.) The findings and recommendations were served on Petitioner and 23 contained notice that any objections were to be filed within thirty (30) days of the date of service 24 of the findings and recommendations. (Id. at 4.) To date, no objections have been filed, and the 25 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 entire file, the Court holds the findings 28 and 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 should issue. A petitioner seeking a writ of habeas corpus 3 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 4 | allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 5 | U.S.C. § 2253. The Court should issue a certificate of appealability if “reasonable jurists could 6 | debate whether (or, for that matter, agree that) the petition should have been resolved in a 7 | different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 8 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 9 | 880, 893 & n.4 (1983)). 10 In the present case, the Court finds that reasonable jurists would not find the Court’s 11 | determination that the petition should be dismissed debatable or wrong, or that Petitioner should 12 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 13 Accordingly, 14 1. The findings and recommendations issued on November 30, 2023, (ECF No. 6), are 15 adopted in full; 16 2. The petition for writ of habeas corpus is dismissed; 17 3. The Clerk of Court is directed to close the case; and 18 4. The Court declines to issue a certificate of appealability. 19 20 91 | TIS SO ORDERED. _ 22 Dated: _ March 21, 2024 4h UNITED STATES DISTRICT JUDGE

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