Flores v. Kernan

Filing 29

ORDER DENYING AS MOOT Petitioner's 27 Motion to Uphold First Amended Petition ; ORDER DIRECTING Clerk of Court to mail copies of Findings and Recommendation, Order Adopting, and Judgment to Petitioner at new address, signed by Chief Judge Lawrence J. O'Neill on 10/3/2019. (Attachments: # 1 Docket Entry 24, # 2 Docket Entry 25, # 3 Docket Entry 26) (Martin-Gill, S)

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Case 1:18-cv-00707-LJO-SAB Document 25 Filed 08/15/19 Page 1 of 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JUAN MANUEL MONTENEGRO FLORES, 10 Case No. 1:18-cv-00707-LJO-SAB-HC Petitioner, 15 ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 (ECF Nos. 20, 22, 24) 11 v. 12 DAVID BAUGHMAN, 13 Respondent. 14 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 19 U.S.C. § 2254. On May 8, 2019, the Magistrate Judge issued Findings and Recommendation that 20 recommended granting Respondent’s motion to dismiss and dismissing the first amended 21 petition for writ of habeas corpus as untimely. (ECF No. 24). This Findings and 22 Recommendation was served on Petitioner and contained notice that any objections were to be 23 filed within thirty (30) days of the date of service of that order. On May 28, 2019, the Findings 1 24 and Recommendation was returned as undeliverable. To date, no objections have been filed, and 25 the time for doing so has passed. 26 /// 27 1 Absent notice of a party’s change of address, service of documents at the prior address of the party is fully 28 effective. Local Rule 182(f). 1 Case 1:18-cv-00707-LJO-SAB Document 25 Filed 08/15/19 Page 2 of 3 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 2 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Findings and Recommendation is supported by the record and proper analysis. 4 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 5 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 7 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (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). If a court denies habeas relief on procedural grounds without reaching the underlying 24 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 25 would find it debatable whether the petition states a valid claim of the denial of a constitutional 26 right and that jurists of reason would find it debatable whether the district court was correct in its 27 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 28 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 2 Case 1:18-cv-00707-LJO-SAB Document 25 Filed 08/15/19 Page 3 of 3 1 could not conclude either that the district court erred in dismissing the petition or that the 2 petitioner should be allowed to proceed further.” Id. 3 In the present case, the Court finds that reasonable jurists would not find the Court’s 4 determination that Petitioner’s federal habeas corpus petition should be dismissed debatable or 5 wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court declines to 6 issue a certificate of appealability. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Findings and Recommendation issued on May 8, 2019 (ECF No. 24) is ADOPTED IN FULL; 9 10 2. The motion to dismiss (ECF No. 22) is GRANTED; 11 3. The first amended petition for writ of habeas corpus (ECF No. 20) is DISMISSED as untimely; 12 13 4. The Clerk of Court is directed to CLOSE the case; and 14 5. The Court DECLINES to issue a certificate of appealability. 15 16 17 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ August 14, 2019 UNITED STATES CHIEF DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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