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