(HC) Lagunas v. Hartley, No. 1:2009cv02210 - Document 16 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING In Full 15 FINDINGS AND RECOMMENDATIONS; GRANTING 14 Motion to Dismiss; DISMISSING Petition for Writ of Habeas Corpus 1 ; Clerk is DIRECTED to ENTER JUDGMENT and close the file; The Court DECLINES to issue a certificate of appealability, signed by District Judge Lawrence J. O'Neill on 8/26/2010. CASE CLOSED. (Marrujo, C)
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(HC) Lagunas v. Hartley Doc. 16 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 FRANK LAGUNAS, 12 13 14 Petitioner, v. 15 J. D. HARTLEY, Warden, 16 17 Respondent. 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-02210-LJO-JLT HC ORDER ADOPTING FINDINGS AND RECOMMENDATION (Doc. 15) ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 14) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 20 21 22 23 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 21, 2009, Petitioner filed the instant petition for writ of habeas corpus. 24 (Doc. 1). On March 24, 2010, the Court ordered Respondent to file a response. (Doc. 9). On 25 May 21, 2010, Respondent filed a motion to dismiss the petition. (Doc. 14). On July 20, 2010, 26 the Magistrate Judge assigned to the case filed a Findings and Recommendation recommending 27 that Respondent’s motion to dismiss be granted and that the petition for writ of habeas corpus be 28 dismissed because Petitioner did not meet the “in custody” requirement of federal habeas law and 1 Dockets.Justia.com 1 for failure to allege a claim that would entitle Petitioner to relief under 28 U.S.C. § 2254. (Doc. 2 15). This Findings and Recommendation was served on all parties and contained notice that any 3 objections were to be filed within twenty days from the date of service of that order. To date, the 4 parties have not filed timely objections to the Findings and Recommendation. 5 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 6 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 7 the Magistrate Judge’s Findings and Recommendation is supported by the record and proper 8 analysis. 9 Moreover, the Court declines to issue a certificate of appealability. A state prisoner 10 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 11 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 12 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate 13 of appealability is 28 U.S.C. § 2253, which provides as follows: 14 15 16 17 18 19 20 21 (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). 22 23 If a court denied a petitioner’s petition, the court may only issue a certificate of 24 appealability when a petitioner makes a substantial showing of the denial of a constitutional 25 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 26 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 27 been resolved in a different manner or that the issues presented were ‘adequate to deserve 28 encouragement to proceed further’.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 2 1 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 2 In the present case, the Court finds that Petitioner has not made the required substantial 3 showing of the denial of a constitutional right to justify the issuance of a certificate of 4 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 5 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 6 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. 9 The Findings and Recommendation, filed July 20, 2010 (Doc. 15), is ADOPTED IN FULL; 10 2. Respondent’s Motion to Dismiss (Doc. 14), is GRANTED; 11 3. This petition for writ of habeas corpus (Doc. 1), is DISMISSED; 12 4. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; 13 and, 14 5. The Court DECLINES to issue a certificate of appealability. 15 This order terminates the action in its entirety. 16 17 18 IT IS SO ORDERED. Dated: b9ed48 August 26, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3