(HC) Gonzalez v. Gamboa

Filing 12

ORDER ADOPTING 10 Findings and Recommendations; ORDER Dismissing Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Declining to Issue Certificate of Appealability signed by District Judge Anthony W. Ishii on 09/08/2021. CASE CLOSED. (Flores, E)

Case 1:21-cv-00649-AWI-JLT Document 12 Filed 09/09/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO R. GONZALEZ,

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Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
CASE

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MARTIN GAMBOA,
Respondent.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (Doc. No. 10)
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS

v.

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No. 1:21-cv-00649-AWI-JLT (HC)

ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On July 26, 2021, the Magistrate Judge assigned to

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the case issued Findings and Recommendation to dismiss the petition. (Doc. No. 10.) This

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Findings and Recommendation was served upon all parties and contained notice that any

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objections were to be filed within thirty days from the date of service of that order. On August

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25, 2021, Petitioner filed objections to the Magistrate Judge’s Findings and Recommendations.

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(Doc. No. 11.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s

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objections, the Court concludes that the Magistrate Judge’s Findings and Recommendation is
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Case 1:21-cv-00649-AWI-JLT Document 12 Filed 09/09/21 Page 2 of 3
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supported by the record and proper analysis. Petitioner’s objections present no grounds for

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questioning the Magistrate Judge’s analysis.

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In addition, the Court declines to issue a certificate of appealability. A state prisoner

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seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of

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his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

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U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of

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appealability is 28 U.S.C. § 2253, which provides as follows:

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(a)
In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit
in which the proceeding is held.

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(b)
There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or to test the validity of such person’s
detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
If a court denies a petitioner’s petition, the court may only issue a certificate of

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appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

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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)).

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In the present case, the Court finds that Petitioner has not made the required substantial
showing of the denial of a constitutional right to justify the issuance of a certificate of
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Case 1:21-cv-00649-AWI-JLT Document 12 Filed 09/09/21 Page 3 of 3
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appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not

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entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

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proceed further. Thus, the Court 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 July 26, 2021 (Doc. No. 10), is

ADOPTED IN FULL;

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2.

The petition for writ of habeas corpus is DISMISSED;

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3.

The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and,

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4.

The Court DECLINES to issue a certificate of appealability.

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This order terminates the action in its entirety.

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IT IS SO ORDERED.
Dated: September 8, 2021
SENIOR DISTRICT JUDGE

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