Sanchez v. Spearmen

Filing 10

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment and CLOSE CASE; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Jennifer L. Thurston on 8/22/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO SANCHEZ, 12 Case No. 1:17-cv-00723-JLT-HC Petitioner, 13 ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS v. 14 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE PEOPLE OF CALIFORNIA, 15 Respondent. ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY 16 17 On May 15, 2017, Petitioner filed a federal petition for writ of habeas corpus.1 He named 18 19 “People of California” as the respondent in this matter. However, “People of California” is not a 20 proper respondent. On July 12, 2017, the Court issued an order advising Petitioner of his failure 21 to name a proper respondent and granting him an opportunity to amend the petition in order to 22 avoid dismissal of the action. Petitioner was advised that failure to amend the petition to state a 23 proper respondent would result in dismissal for lack of jurisdiction. Over thirty days have now 24 passed and Petitioner has failed to amend the petition or respond in any way. Therefore, the 25 petition will be dismissed. In addition, the Court declines to issue a certificate of appealability. A state prisoner 26 27 1 On May 30, 2017, Petitioner consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c). 28 (Doc. No. 7.) 1 1 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 2 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 3 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 4 appealability is 28 U.S.C. § 2253, which provides as follows: 5 (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 6 in which the proceeding is held. 7 (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 8 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 9 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 10 not be taken to the court of appeals from— 11 12 13 14 15 16 17 (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 18 appealability when a petitioner makes a substantial showing of the denial of a constitutional 19 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 20 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 21 been resolved in a different manner or that the issues presented were ‘adequate to deserve 22 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 23 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 24 In the present case, the Court finds that Petitioner has not made the required substantial 25 showing of the denial of a constitutional right to justify the issuance of a certificate of 26 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 27 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 28 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 2 ORDER 1 2 Accordingly, the Court ORDERS: 3 1. The petition for writ of habeas corpus is DISMISSED for lack of jurisdiction; 4 2. The Clerk of Court is DIRECTED to enter judgment and close the case; and 5 3. The Court DECLINES to issue a certificate of appealability. 6 7 8 IT IS SO ORDERED. Dated: August 22, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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