Rodriguez v. Davey

Filing 8

ORDER adopting 6 FINDINGS AND RECOMMENDATIONS, dismissing 1 Petition for Writ of Habeas Corpus, directing Clerk of Court to close case and declining to issue a certificate of appealability signed by Chief Judge Lawrence J. O'Neill on 9/6/2017. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTURO RODRIGUEZ,

Case No. 1:17-cv-00421-LJO-EPG-HC

Petitioner,

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v.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATION, DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS, DIRECTING CLERK OF COURT
TO CLOSE CASE, AND DECLINING TO
ISSUE A CERTIFICATE OF
APPEALABILITY

DAVE DAVEY,

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Respondent.

(ECF No. 6)

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28

19 U.S.C. § 2254. On May 15, 2017, the Magistrate Judge issued Findings and Recommendation
20 that recommended the petition be dismissed because it fails to state a cognizable federal habeas
21 claim. (ECF No. 6). This Findings and Recommendation was served on Petitioner and contained
22 notice that any objections were to be filed within thirty (30) days of the date of service of that
23 order. To date, Petitioner has filed no objections, and the time for doing so has passed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted

25 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that
26 the Findings and Recommendation is supported by the record and proper analysis, and there is no
27 need to modify the Findings and Recommendation.
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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
3 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining
4 whether to issue 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.
(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).
A court should issue a certificate of appealability if “reasonable jurists could debate

21 whether (or, for that matter, agree that) the petition should have been resolved in a different
22 manner or that the issues presented were ‘adequate to deserve encouragement to proceed
23 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
24 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find
25 the Court’s determination that Petitioner’s federal habeas corpus petition should be dismissed
26 debatable or wrong, or that the issues presented are deserving of encouragement to proceed
27 further. Therefore, the Court declines to issue a certificate of appealability.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendation issued on May 15, 2017 (ECF No. 6) is
ADOPTED IN FULL;

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2. The petition for writ of habeas corpus is DISMISSED;

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3. The Clerk of Court is directed to CLOSE the case; and

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4. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 6, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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