Torres v. Peery
Filing
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ORDER 20 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing Claims from Petition for Writ of Habeas Corpus; ORDER Referring Matter back to Magistrate Judge for Further Proceedings signed by Chief Judge Lawrence J. O'Neill on 04/11/2018. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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OSCAR PABLO TORRES,
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Petitioner,
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SUZANNE PERRY, Warden,
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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (Doc. No. 20)
ORDER DISMISSING CLAIMS FROM
PETITION FOR WRIT OF HABEAS
CORPUS
v.
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No. 1:17-cv-00169-LJO-JLT (HC)
ORDER REFERRING MATTER BACK TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS
Respondent.
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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. On March 1, 2018, the Magistrate Judge assigned to
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the case issued Findings and Recommendation to dismiss Claims One, Four, Eight, Nine, Eleven,
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Thirteen, and Fifteen from the First Amended Petition. (Doc. No. 20.) This Findings and
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Recommendation was served upon all parties and contained notice that any objections were to be
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filed within twenty-one days from the date of service of that order. On March 19, 2018,
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Petitioner filed objections to the Magistrate Judge’s Findings and Recommendations. (Doc. No.
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21.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a
de novo review of the case. Having carefully reviewed the entire file, including Petitioner's
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objections, the Court concludes that the Magistrate Judge’s Findings and Recommendation is
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supported by the record and proper analysis. Petitioner's objections present no grounds for
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questioning the Magistrate Judge's analysis.
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In addition, the Court declines to issue a certificate of appealability. A state prisoner
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seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of
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his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537
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U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of
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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.
(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).
If a court denies a petitioner’s petition, the court may only issue a certificate of
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appealability when a petitioner makes a substantial showing of the denial of a constitutional right.
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28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that
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“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
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been resolved in a different manner or that the issues presented were ‘adequate to deserve
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encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
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Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
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In the present case, the Court finds that Petitioner has not made the required substantial
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showing of the denial of a constitutional right to justify the issuance of a certificate of
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appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not
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entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to
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proceed further. Thus, the Court DECLINES to issue a certificate of appealability.
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Accordingly, the Court orders as follows:
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ADOPTED IN FULL;
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2.
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Claims One, Four, Eight, Nine, Eleven, Thirteen, and Fifteen are DISMISSED
from the First Amended Petition;
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The Findings and Recommendations, filed March 1, 2018 (Doc. No. 20), is
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The matter is REFERRED BACK to the Magistrate Judge for further proceedings;
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The Court DECLINES to issue a certificate of appealability.
and
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
April 11, 2018
UNITED STATES CHIEF DISTRICT JUDGE
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