(HC) Lupercio v. Visalia Police Department

Filing 19

ORDER ADOPTING #10 Findings and Recommendations and Dismissing Petition for Writ of Habeas Corpus, Certificate of Appealability Declined, signed by District Judge Dale A. Drozd on 04/23/2021. CASE CLOSED.(Maldonado, C)

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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 RAMON NAVARRO LUPERCIO, 12 Petitioner, 13 14 No. 1:21-cv-00306-DAD-JLT (HC) v. VISALIA POLICE DEPARTMENT, 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS Respondent. (Doc. Nos. 1, 10) 16 17 Petitioner Ramon Navarro Lupercio is a state prisoner proceeding pro se and in forma 18 19 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 21 302. On March 12, 2021, the assigned magistrate judge issued findings and recommendations, 22 23 recommending that the pending petition for federal habeas relief be dismissed for lack of 24 jurisdiction. (Doc. No. 10.) These findings and recommendations were served on all parties and 25 contained notice that any objections thereto were to be filed within twenty-one (21) days of 26 service. (Id.) To date, no objections to the findings and recommendations have been filed with 27 the court, and the time in which to do so has now passed. 28 ///// 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, the court concludes that 3 the findings and recommendations are supported by the record and proper analysis. 4 In addition, having concluded that the pending petition must be dismissed, the court now 5 turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of 6 habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 7 appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 8 (2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds 9 without reaching the underlying constitutional claims, the court should issue a certificate of 10 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 11 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 12 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 In the present case, the court finds that reasonable jurists would not find the court’s determination 14 that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to 15 proceed further. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. 18 The findings and recommendations issued on March 12, 2021 (Doc. No. 10) are adopted in full; 19 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to close this case. 22 23 24 IT IS SO ORDERED. Dated: April 23, 2021 UNITED STATES DISTRICT JUDGE 25 26 27 28 2

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