Vibanco v. Hatton
Filing
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ORDER ADOPTING 28 Findings and Recommendations; ORDER DENYING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment and Close Case, signed by District Judge Anthony W. Ishii on 12/3/2020. CASE CLOSED(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ORLANDO VIBANCO,
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Petitioner,
Case No. 1:17-cv-00926-AWI-HBK (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (Doc. No. 28)
v.
SHAWN HATTON,
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Respondent.
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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
CASE
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Petitioner Orlando Vibanco is a state prisoner proceeding in propria persona with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 15.) On August 28,
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2020, the Magistrate Judge assigned to the case issued Findings and Recommendations to deny
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the petition. (Doc. No. 28.) These Findings and Recommendations were served upon all parties
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and contained notice that any objections were to be filed within thirty days from the date of
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service of that order. To date, no party has filed objections.
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a
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de novo review of the case. Having carefully reviewed the entire file, the Court concludes that
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the Magistrate Judge’s Findings and Recommendations are supported by the record and proper
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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
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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
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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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1.
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The Findings and Recommendations, filed August 28, 2020 (Doc. No. 28), are
ADOPTED IN FULL;
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2.
The petition for writ of habeas corpus is DENIED;
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3.
The Clerk of Court shall ENTER JUDGMENT and CLOSE the file; and,
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4.
The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated: December 3, 2020
SENIOR DISTRICT JUDGE
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