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