Delgadillo v. People of the State of California

Filing 30

ORDER ADOPTING IN FULL 29 Finding and Recommendation; DISMISSING Petition For Writ of Habeas Corpus and Declining to Issue Certificate of Appealability, signed by District Judge Lawrence J. O'Neill on 6/30/2010. CASE CLOSED. (Marrujo, C)

(HC) Delgadillo v. James E. Tilton

Doc. 30

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) 1:08-CV-01666 OWW JMD HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. 29] ORDER DIRECTING CLERK OF COURT TO ENTER JUDGEMENT ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

JAMES E. TILTON, Respondent.

Jose L. Delgadillo is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 14, 2010, the Magistrate Judge issued a Findings and Recommendations, recommending that the petition for writ of habeas corpus be DENIED with prejudice. The Magistrate Judge further recommended that the Clerk of Court be DIRECTED to enter judgment. The Findings and Recommendations was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order. Thirty days have since passed and Petitioner has failed to file any objections to the Findings and Recommendation. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the record and Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation, finding that Petitioner is not entitled to habeas corpus relief, is supported by the record and proper analysis. 1
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U .S . D is t r i c t C o u r t E. D . C a l i f o r n i a

Additionally, the Court notes that a state prisoner 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, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides that a circuit judge or judge may issue a certificate of appealability where "the applicant has made a substantial showing of the denial of a constitutional right." Where the court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 123 S. Ct. at 1034; 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, 123 S. Ct. at 1040. In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court hereby declines to issue a certificate of appealability. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued May 14, 2010, is ADOPTED IN FULL with the additional analysis stated above; 2. 3. 4. The Petition for Writ of Habeas Corpus is DENIED with prejudice; The Clerk of Court is DIRECTED to enter judgment; and The Court declines to issue a certificate of appealability.

IT IS SO ORDERED. Dated: b9ed48 June 30, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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