Lupercio v. Gonzalez

Filing 18

ORDER ADOPTING 15 FINDINGS and RECOMMENDATIONS signed by District Judge Lawrence J. O'Neill on 1/22/2009, GRANTING 8 Respondent's Motion to Dismiss; DISMISSING Petition for Writ of Habeas Corpus; DENYING the Issuance of a Certificate of Appealability; DIRECTING the Clerk of Court to Enter Judgment for Respondent and to Close this Case. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 RAMON NAVARRO LUPERCIO, 7 Petitioner, 8 9 10 SYLVIA GONZALEZ, WARDEN, 11 Respondent. 12 13 14 15 Petitioner is a prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 16 U.S.C. Section 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 17 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. 18 On December 9, 2008, the Magistrate Judge filed findings and recommendations herein. 19 These findings and recommendations were served on the parties and contained notice to the parties 20 that any objections to the findings and recommendations were to be filed within thirty days. 21 Petitioner filed objections on January 6, 2009, to which Respondent filed a reply on January 14, 22 2009. 23 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has conducted a de 24 novo review of this case. 25 1983). Having carefully reviewed the entire file, the court finds the findings and recommendations 26 to be supported by the record and by proper analysis. 27 Petitioner may seek to appeal from the judgment of the court in this case. Petitioner cannot 28 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. / v. O R D E R ADOPTING FINDINGS AND RECOMMENDATIONS RE MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc.8, 15] 1: 08 CV 0012 LJO WMW HC

U N IT E D STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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proceed on such an appeal absent a certificate of appealability. The controlling statute, 28 U.S.C. § 2253, provides as follows: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). In the present case, the court finds no denial of a constitutional right. Accordingly, a certificate of appealability will be denied.

Based on the foregoing, it is HEREBY ORDERED that: 1. The findings and recommendations issued by the Magistrate Judge on December 9, 2008, are adopted in full; 2. 3. Respondent's motion to dismiss is GRANTED; The Petition for Writ of Habeas Corpus is DISMISSED as barred by the statute of limitations; 4. 3. A certificate of appealability is DENIED; and The Clerk of the Court is directed to enter judgment for Respondent and to close this case.

IT IS SO ORDERED. Dated: b9ed48 January 22, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE