(HC) Nava v. On Habeas Corpus, No. 1:2021cv00594 - Document 10 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 5 Findings and Recommendations, Dismissing Petition for Writ of Habeas Corpus, Directing Clerk of Court to Assign District Judge and Close Case, and Declining to Issue Certificate of Appealability, signed by District Judge Dale A. Drozd on 7/14/2021. 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 LUIS ALBERTO ALARCON NAVA, 12 Petitioner, 13 14 v. 15 16 17 No. 1:21-cv-00594-NONE-SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Doc. No. 5) UNNAMED, Respondent. 18 19 Petitioner Luis Alberto Alarcon Nava is a state prisoner proceeding pro se and in forma 20 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302. 24 On April 13, 2021, the assigned magistrate judge issued findings and recommendations 25 recommending that the petition be dismissed. (Doc. No. 5 at 1–2.) Because petitioner already 26 had a habeas petition pending before this court (No. 1:20-cv-01378-HBK) when he filed the 27 instant petition, this petition would normally be construed as a motion to amend the earlier 28 petition. (Doc. No. 5 at 2 (citing Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).) However, it 1 1 appears that petitioner intended to file this new petition with the California Supreme Court and 2 thus, the magistrate judge found that construing the new petition as a motion to amend would be 3 inappropriate. (See Doc. No. 1.) Those findings and recommendations were served upon all 4 parties and contained notice that any objections thereto were to be filed within fourteen (14) days 5 after service. (Id. at 2.) On May 27, 2021, petitioner filed objections to the findings and 6 recommendations. (Doc. No. 8.) However, those objections provided no basis upon which to 7 call the pending findings and recommendations into question, but in fact provided further support 8 for the conclusion reached by those findings and recommendations. 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 11 objections, the court concludes that the magistrate judge’s findings and recommendations are 12 supported by the record and proper analysis. 13 In addition, the court declines to issue a certificate of appealability. A state prisoner 14 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 15 his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 16 v. Cockrell, 537 U.S. 322, 335–36 (2003). If a court denies a petitioner’s petition, the court may 17 only issue a certificate of appealability when a petitioner makes a substantial showing of the 18 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 19 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 20 that) the petition should have been resolved in a different manner or that the issues presented 21 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 22 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, the court 23 finds that petitioner has not made the required substantial showing of the denial of a constitutional 24 right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the 25 court’s determination that petitioner is not entitled to federal habeas corpus relief debatable, 26 wrong, or deserving of encouragement to proceed further. Thus, the court declines to issue a 27 certificate of appealability. 28 ///// 2 1 Accordingly, 2 1. 3 The findings and recommendations issued on April 13, 2021, (Doc. No. 5), are adopted in full; 4 2. The petition for writ of habeas corpus, (Doc. No. 1), is dismissed; 5 3. The clerk of court is directed to assign a district judge to this case for the purpose 6 7 8 9 10 of closing the case and then to enter judgment and close the case; and 4. The court declines to issue a certificate of appealability. IT IS SO ORDERED. Dated: July 14, 2021 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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