(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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EUGENIO MENDOZA,

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Petitioner,

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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

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pauperis, has petitioned the court for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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Petitioner is serving a four-year state prison sentence after being convicted for making terrorist

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threats and is seeking federal habeas relief awarding him 33% in time credits against his sentence

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that he claims he has earned. (Doc. Nos. 1 at 3; 5 at 1, 3.) On July 16, 2020, the assigned

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magistrate judge found that petitioner had failed to exhaust his claim by presenting it first to the

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highest state court as required by 28 U.S.C. § 2254(b)(1) and, also, that petitioner had failed to

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name a state officer holding him in custody. (Doc. No. 5 at 2–4.) Based on these findings, the

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magistrate judge recommended that the petition be dismissed without prejudice. (Id. at 5.)

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Although the magistrate judge granted petitioner twenty-one (21) days to file objections to the

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findings and recommendations (id.), petitioner has not done so.
Having reviewed the pending findings and recommendations de novo pursuant to 28

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U.S.C. § 636 (b)(1)(C), the court finds that the magistrate judge’s findings and recommendations

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are supported by the record and proper analysis.

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In addition, the court must consider whether to issue a certificate of appealability. When a

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court dismisses a petition for a writ of habeas corpus, it may only issue a certificate of

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appealability when “the applicant has made a substantial showing of the denial of a constitutional

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right.” 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)). In the present case, petitioner has not made the

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required substantial showing. The court is not persuaded that reasonable jurists would find the

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court’s determination that petitioner is not entitled to federal habeas corpus relief wrong or

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debatable, or that they would conclude petitioner deserves encouragement to proceed further.

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The court therefore 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 on July 16, 2020 (Doc. No. 5), are
ADOPTED in full;

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2.

The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE;

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3.

The court DECLINES to issue a certificate of appealability; and

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4.

The Clerk of Court is DIRECTED to assign a district judge to this case for the

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purpose of closing the case and then to close the case.
IT IS SO ORDERED.

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Dated:

September 8, 2020

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UNITED STATES DISTRICT JUDGE

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