Aguirre v. On Habeas Corpus

Filing 7

ORDER DISMISSING 1 Petition; ORDER DIRECTING Clerk of Court to Enter Judgment and TERMINATE Case; ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Gary S. Austin on 10/30/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ABEL AGUIRRE,

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1:12-CV-01305 GSA HC
Petitioner,

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ORDER DISMISSING PETITION

v.

ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND TERMINATE
CASE

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PEOPLE,
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ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

Respondent.
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/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the magistrate judge pursuant
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to 28 U.S.C. § 636(c).
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On August 10, 2012, Petitioner filed the instant petition for writ of habeas corpus. He
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challenges a conviction for rape sustained in Tulare County Superior Court. Following a preliminary
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review of the petition, on August 30, 2012, the Court determined the petition failed to state a
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cognizable claim for relief and failed to name a proper respondent. Petitioner was given thirty (30)
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days leave to file an amended petition, and he was provided a blank habeas form by the Clerk of
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Court. He was forewarned that failure to comply would result in dismissal of the petition and
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termination of the action. Over thirty (30) days have passed and Petitioner has failed to comply.
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Accordingly, the petition will be dismissed for failure to state a cognizable claim and for failure to
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prosecute. See Local Rule 110; Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).

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CERTIFICATE OF APPEALABILITY

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-

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El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue

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a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(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.

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(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.

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(c)
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(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

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(B) the final order in a proceeding under section 2255.

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(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.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of appealability

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“if jurists of reason could disagree with the district court’s resolution of his constitutional claims or

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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the

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petitioner is not required to prove the merits of his case, he must demonstrate “something more than

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the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a

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certificate of appealability.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED;

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2) The Clerk of Court is DIRECTED to enter judgment and terminate the case; and

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
6i0kij

October 30, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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