(HC) Mendoza v. CDCR

Filing 7

ORDER ADOPTING #5 FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Assign a District Judge; New Case No. 1:20-cv-979 DAD-SKO (HC); ORDER DECLINING to Issue a Certificate of Appealability, signed by District Judge Dale A. Drozd on 9/8/2020. CASE CLOSED(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENIO MENDOZA, 12 Petitioner, 13 14 15 16 17 18 v. CDCR, Respondent. No. 1: 20-cv-00979-NONE-SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (Doc. No. 5) Petitioner Eugenio Mendoza, a state prisoner proceeding in propria persona and in forma 19 pauperis, has petitioned the court for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 Petitioner is serving a four-year state prison sentence after being convicted for making terrorist 21 threats and is seeking federal habeas relief awarding him 33% in time credits against his sentence 22 that he claims he has earned. (Doc. Nos. 1 at 3; 5 at 1, 3.) On July 16, 2020, the assigned 23 magistrate judge found that petitioner had failed to exhaust his claim by presenting it first to the 24 highest state court as required by 28 U.S.C. § 2254(b)(1) and, also, that petitioner had failed to 25 name a state officer holding him in custody. (Doc. No. 5 at 2–4.) Based on these findings, the 26 magistrate judge recommended that the petition be dismissed without prejudice. (Id. at 5.) 27 Although the magistrate judge granted petitioner twenty-one (21) days to file objections to the 28 1 1 2 findings and recommendations (id.), petitioner has not done so. Having reviewed the pending findings and recommendations de novo pursuant to 28 3 U.S.C. § 636 (b)(1)(C), the court finds that the magistrate judge’s findings and recommendations 4 are supported by the record and proper analysis. 5 In addition, the court must consider whether to issue a certificate of appealability. When a 6 court dismisses a petition for a writ of habeas corpus, it may only issue a certificate of 7 appealability when “the applicant has made a substantial showing of the denial of a constitutional 8 right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 9 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 10 been resolved in a different manner or that the issues presented were ‘adequate to deserve 11 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 12 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, petitioner has not made the 13 required substantial showing. The court is not persuaded that reasonable jurists would find the 14 court’s determination that petitioner is not entitled to federal habeas corpus relief wrong or 15 debatable, or that they would conclude petitioner deserves encouragement to proceed further. 16 The court therefore declines to issue a certificate of appealability. 17 Accordingly, the court orders as follows: 18 1. 19 The findings and recommendations, filed on July 16, 2020 (Doc. No. 5), are ADOPTED in full; 20 2. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE; 21 3. The court DECLINES to issue a certificate of appealability; and 22 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the 23 24 purpose of closing the case and then to close the case. IT IS SO ORDERED. 25 Dated: September 8, 2020 26 UNITED STATES DISTRICT JUDGE 27 28 2

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