(HC) Herrera v. On Habeas Corpus

Filing 11

ORDER ADOPTING 8 Findings and Recommendations, DISMISSING Petition for Writ of Habeas Corpus, DIRECTING Clerk of Court to Close Case, and DECLINING to Issue a Certificate of Appealability, signed by District Judge Kirk E. Sherriff on 1/3/2025. CASE CLOSED. (Deputy Clerk OFR)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY Y. HERRERA,

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Plaintiff,

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v.

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UNKNOWN,

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Defendant.

Case No. 1:24-cv-00879-KES-CDB (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS, DIRECTING CLERK OF COURT
TO CLOSE CASE, AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY
(Doc. 8)

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Petitioner Johnny Herrera is a state prisoner proceeding pro se and in forma pauperis with

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a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The petition seeks

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review of a sentence imposed upon him in state court. Id. at 2. Petitioner claims his sentence

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should be reduced. Id. at 3-4, 7-8. This matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On October 15, 2024, the assigned magistrate judge issued findings and recommendations

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to dismiss the petition, finding that petitioner (1) failed to name the state officer having custody,

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Doc. 8 at 4, (2) failed to exhaust his administrative remedies, id., and (3) failed to state a claim for

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relief, in that petitioner failed to allege anything more than a possible error in the application by

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the state court of state sentencing laws, id. at 5–6. The findings and recommendations were

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served on petitioner. Petitioner had 21 days to file objections thereto. Id. at 6.

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On November 13, 2024, after the 21-day deadline had passed, petitioner filed a motion in

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which he requested information concerning his case. Doc. 9. In light of petitioner’s motion, the

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assigned magistrate judge extended nunc pro tunc the time for petitioner to file objections to the

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findings and recommendations, effectively extending the deadline to file objections from

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November 5, 2024, to December 16, 2024. Doc. 10. The order extending the deadline was

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served on petitioner, along with a copy of the previously served findings and recommendations.

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Petitioner did not file any objections to the findings and recommendations and the

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deadline to do so has passed.

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In accordance with 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of

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this case. Having carefully reviewed the file, the Court finds the findings and recommendations

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to be supported by the record and proper analysis.

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Having found that petitioner is not entitled to habeas relief, the Court now turns to

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whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus

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has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is

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allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28

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U.S.C. § 2253. The Court should issue a certificate of appealability if “reasonable jurists could

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debate whether (or, for that matter, agree that) the petition should have been resolved in a

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different manner or that the issues presented were ‘adequate to deserve encouragement to proceed

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further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

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880, 893 & n.4 (1983)).

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that the petition should be dismissed debatable or wrong, or that petitioner should

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be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability.

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Accordingly:

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1. The findings and recommendations issued on October 15, 2024, Doc. 8, are

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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 close the case; and

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4. The Court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

January 3, 2025
UNITED STATES DISTRICT JUDGE

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