(HC) Hurtado v. Spearman, No. 1:2019cv01159 - Document 21 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 19 Findings and Recommendations, GRANTING Respondent's 13 Motion to Dismiss, DENYING 1 Petition for Writ of Habeas Corpus, and DECLINING to Issue a Certificate of Appealability, signed by District Judge Dale A. Drozd on 4/20/2020. CASE CLOSED.(Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANTHONY HURTADO, 12 13 No. 1:19-cv-01159-DAD-JLT (HC) Petitioner, 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 17 (Doc. No. 19) 14 v. M.E. SPEARMAN, 15 Respondent. 18 19 20 Petitioner Richard Anthony Hurtado is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) 22 The matter was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 23 Rule 302. 24 On February 18, 2020, the assigned magistrate judge issued findings and 25 recommendations recommending that respondent’s motion to dismiss the pending petition (Doc. 26 No. 13) be granted. (Doc. No. 19.) Specifically, the magistrate judge found that respondent was 27 correct in the assertion that the pending petition must be denied as an unauthorized second or 28 successive petition. (Id. at 1–2.) The findings and recommendations were served on petitioner 1 1 and contained notice that any objections thereto were to be filed within thirty (30) days after 2 service. (Id. at 3.) To date, no objections to those findings and recommendations have been filed 3 by petitioner. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 6 including petitioner’s objections, the court finds the findings and recommendations to be 7 supported by the record and proper analysis. 8 On March 23, 2020, petitioner filed with the court a “MOTION to STAY or for 9 EXTENSION of TIME.” (Doc. No. 20.) Therein, petitioner “motions this Court to stay all the 10 proceedings pending an application for leave to file [a] second or successive petitioner.” (Id. at 11 1.) He argues that such an application is currently being brought in the Ninth Circuit. (Id.) 12 Petitioner’s motion will be denied because the court does not have jurisdiction over this matter 13 until he obtains authorization from the Ninth Circuit to file a successive petition. See 28 U.S.C. § 14 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the 15 district court, the applicant shall move in the appropriate court of appeals for an order authorizing 16 the district court to consider the application.”) (emphasis added). Because petitioner in this case 17 has made no showing that he has obtained prior leave from the Ninth Circuit to file a successive 18 petition, this court has no jurisdiction to consider his application for relief under 28 U.S.C. § 2254 19 and must deny the petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 20 Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to 21 appeal a district court’s denial of his petition, and an appeal is only allowed in certain 22 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal 23 rules governing habeas cases brought by state prisoners require a district court issuing an order 24 denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules 25 Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the 26 applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 27 § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, id. at (c)(3). 28 Where a petitioner’s constitutional claims have been rejected, “the showing required to satisfy 2 1 § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find 2 the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 3 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing. 4 Accordingly, a certificate of appealability will not be issued. 5 For the reasons set forth above, 6 1. 7 The February 18, 2020 findings and recommendations (Doc. No. 19) are adopted in full; 8 2. Respondent’s motion to dismiss the petition (Doc. No. 13) is granted; 9 3. The petition for writ of habeas corpus (Doc. No. 1) is denied; 10 4. Petitioner’s miscellaneous motion (Doc. No. 20) is denied; 11 5. The Clerk of the Court is directed to close this case; and 12 6. The court declines to issue a certificate of appealability. 13 14 15 IT IS SO ORDERED. Dated: April 20, 2020 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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