(HC)Saldivar v. Superior Court of California, Fresno County

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUSTY LEE SALDIVAR, No. 1:24-cv-00393-KES-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, AND 14 SUPERIOR COURT OF CALIFORNIA, DIRECTING CLERK OF COURT TO CLOSE FRESNO COUNTY, CASE, AND DECLINING TO ISSUE A 15 CERTIFICATE OF APPEALABILITY Respondent. 16 (Doc. 9) 17 18 Petitioner Rusty Lee Saldivar is a state pretrial detainee 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 May 31, 2024, the assigned magistrate judge issued findings and recommendations 22 that recommended dismissing the petition for failure to exhaust. Doc. 9. On July 2, 2024, 23 petitioner filed objections. Doc. 10. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 25 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 26 Court holds the findings and recommendations to be supported by the record and proper analysis. 27 Petitioner’s objections continue to argue that an appeal to the California Supreme Court would be 28 futile and hopeless, id. at 1–2, but as the findings and recommendations explain, this is not an 1 exception to the exhaustion requirement for pre-conviction § 2241 petitions, Doc. 9 at 2–3. 2 Petitioner also argues that he was advised by his attorney not to file the appeal to the California 3 Supreme Court and attempts to argue that this would render the assistance she gave him 4 ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Doc. 10 at 2–3. However, this 5 claim, too, is unexhausted, and cannot be considered by the Court at this stage. 6 Having found that petitioner is not entitled to habeas relief, the Court now turns to 7 whether a certificate of appealability should issue. Wilson v. Belleque, 554 F.3d 816, 825 (9th 8 Cir. 2009) (“[A] state petitioner proceeding under § 2241 must obtain a COA where the target of 9 the habeas petition arises out of process issued by a state court.”). A petitioner seeking a writ of 10 habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 11 appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 12 (2003); 28 U.S.C. § 2253. Where, as here, the Court denies habeas relief on procedural grounds 13 without reaching the underlying constitutional claims, the court should issue a certificate of 14 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 15 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 16 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 18 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 19 petition or that the petitioner should be allowed to proceed further.” Id. 20 In the present case, the Court finds that reasonable jurists would not find the determination 21 that the petition should be dismissed debatable, wrong, or deserving of encouragement to proceed 22 further. Therefore, the Court declines to issue a certificate of appealability. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly: 2 1. The findings and recommendations issued on May 31, 2024, Doc. 9, are ADOPTED in 3 full; 4 2. The petition for writ of habeas corpus is DISMISSED without prejudice; 5 3. The Clerk of Court is directed to close the case; and 6 4. The court declines to issue a certificate of appealability. 7 8 g | SO ORDERED. _ 10 Dated: _ December 12, 2024 4h UNITED STATES DISTRICT JUDGE

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