(HC) Castillo-Chavez v. Trate, No. 1:2023cv00413 - Document 14 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 5 Findings and Recommendations; ORDER DISMISSING Petition for Writ of Habeas Corpus and Directing Clerk of Court to Enter Judgment and Close Case, ORDER DECLINING to Issue Certificate of Appealability, signed by District Judge Jennifer L. Thurston on 6/30/2023. CASE CLOSED. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO CASTILLO-CHAVEZ, Petitioner, 12 13 v. 14 B.M. TRATE, Respondent. 15 16 No. 1:23-cv-00413-JLT-SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 5) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 17 18 Gerardo Castillo-Chavez is a federal prisoner proceeding with appointed counsel and in 19 forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This 20 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 21 Local Rule 302. 22 The Court conducted a preliminary review of the petition and recommended the petition 23 be dismissed for lack of jurisdiction. (Doc. 5.) Petitioner filed objections to the Findings and 24 Recommendation on April 25, 2023. (Doc. 9.) Thereafter, pursuant to General Order 563, the 25 matter was referred to the Federal Defender’s Office, and on April 25, 2023, attorney Verna 26 Wefald was appointed as Petitioner’s counsel. (Docs. 6, 8.) The Court stayed the Findings and 27 Recommendations and granted counsel leave to supplement the petition. (Doc. 6.) 28 On June 22, 2023, the Supreme Court issued its opinion in Jones v. Hendrix, 599 U.S. 1 1 ___, ___ S. Ct. ___, 2023 WL 4110233 (2023). In Jones, the Supreme Court held that the 2 savings clause in 28 U.S.C. § 2255(e) “does not permit a prisoner asserting an intervening change 3 in statutory interpretation to circumvent AEDPA's restrictions on second or successive § 2255 4 motions by filing a § 2241 petition.” Id., at *5. In light of the Supreme Court’s decision, on June 5 26, 2023, Counsel for Petitioner filed a notice advising the Court that Counsel would not be 6 submitting further briefing. (Doc. 12 at 3.) On June 28, 2023, the Magistrate Judge vacated the 7 stay of the Findings and Recommendation and submitted them to this Court pursuant to 28 U.S.C. 8 § 636(b)(1)(B). 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 Findings and Recommendations are supported by the 12 record and proper analysis. 13 In addition, the Court declines to issue a certificate of appealability. A prisoner seeking a 14 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 15 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335- 16 336 (2003). A certificate of appealability is required for a successive § 2255 motion that is 17 disguised as a § 2241 petition. Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. 18 Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). The controlling statute in determining whether to 19 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 20 21 22 23 24 25 26 27 28 (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 1 (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. 2 3 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 4 5 If a court denies a petitioner’s petition, the court may only issue a certificate of 6 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 7 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 8 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 9 been resolved in a different manner or that the issues presented were ‘adequate to deserve 10 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 11 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 12 In the present case, the Court finds that Petitioner has not made the required substantial 13 showing of the denial of a constitutional right to justify the issuance of a certificate of 14 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 15 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 16 proceed further. Thus, the Court declines to issue a certificate of appealability. Thus, the Cout 17 ORDERS: 18 1. The Findings and Recommendations issued on March 27, 2023, (Doc. 5), are ADOPTED IN FULL. 19 20 2. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE. 21 3. The Clerk of Court is directed to enter judgment and close the case. 22 4. The Court declines to issue a certificate of appealability. 23 This order terminates the action in its entirety. 24 25 26 IT IS SO ORDERED. Dated: June 30, 2023 27 28 3

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