(HC) Calvillo vs. Sisto, et al.,, No. 1:2008cv00419 - Document 17 (E.D. Cal. 2009)
Court Description: ORDER signed by Judge Oliver W. Wanger on 2/9/2009 ADOPTING IN FULL 15 Findings and Recommendations; DISMISSING [1[ Petition for Writ of Habeas Corpus; DENYING Issuance of a CERTIFICATE OF APPEALABILITY and DIRECTING Clerk to enter Judgment for Respondents. CASE CLOSED.(Lundstrom, T)
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(HC) Calvillo vs. Sisto, et al., Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RICHARD JASON CALVILLO, 9 Petitioner, 10 v. 11 D.K. SISTO, et al., 12 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00419-OWW-TAG (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 15) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DENYING CERTIFICATE OF APPEALABILITY 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 On November 13, 2008, the Magistrate Judge assigned to the case filed Findings and 19 Recommendations recommending the petition for writ of habeas corpus be dismissed as 20 untimely. (Doc.15). The Findings and Recommendations were served on Petitioner and 21 contained notice that any objections were to be filed within twenty days from the date of service 22 of that order, i.e., no later than December 8, 2008. To date, no timely objections to the Findings 23 and Recommendations have been filed. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 25 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the Magistrate Judge’s Findings and Recommendations are supported by the record and proper 27 analysis. 28 /// 1 Dockets.Justia.com 1 Moreover, the Court will deny issuance of a certificate of appealability. The requirement 2 that a petitioner seek a certificate of appealability is a gate-keeping mechanism that protects the 3 Court of Appeals from having to devote resources to frivolous issues, while at the same time 4 affording petitioners an opportunity to persuade the Court that, through full briefing and 5 argument, the potential merit of claims may appear. Lambright v. Stewart, 220 F.3d 1022, 1025 6 (9th Cir. 2000). However, a state prisoner seeking a writ of habeas corpus has no absolute 7 entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in 8 certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S. Ct. 1029 (2003). 9 (2003). 10 The controlling statute, 28 U.S.C. § 2253, provides as follows: 11 (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. (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). 12 13 14 15 16 17 18 19 20 Accordingly, final orders issued by a federal district court in habeas corpus proceedings 21 are reviewable by the circuit court of appeals, and, in order to have final orders reviewed, a 22 petitioner must obtain a certificate of appealability. This Court will issue a certificate of 23 appealability when a petitioner makes a substantial showing of the denial of a constitutional 24 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 25 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 26 been resolved in a different manner or that the issues presented were ‘adequate to deserve 27 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 28 (2000)(citation omitted). 2 1 In the present case, the Court finds that Petitioner has not made the required substantial 2 showing of the denial of a constitutional right to justify the issuance of a certificate of 3 appealability. Reasonable jurists would not find it debatable that Petitioner has not shown an 4 entitlement to federal habeas corpus relief. Accordingly, the Court will deny the issuance of a 5 certificate of appealability. 6 ORDER 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. 9 The Findings and Recommendations filed November 13, 2008 (Doc. 15), are ADOPTED IN FULL; 10 2. The Petition for Writ of Habeas Corpus (Doc. 1), is DISMISSED; 11 3. Issuance of a certificate of appealability is DENIED; and 12 4. The Clerk of Court is DIRECTED to ENTER JUDGMENT for Respondents and 13 14 close the file. This order terminates the action in its entirety. 15 IT IS SO ORDERED. 16 Dated: February 9, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3
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