(HC) Senatore v. Fischer, No. 2:2018cv00325 - Document 19 (E.D. Cal. 2023)

Court Description: ORDER signed by District Judge Dale A. Drozd on 11/18/2023 ADOPTING 18 The Findings and Recommendations in full; The petition 1 for writ of habeas corpus is DENIED; The court DECLINES to issue a certificate of appealability (28 U.S.C. § 2253(c)); and The Clerk of the Court is directed to close this case. CASE CLOSED. (Mena-Sanchez, L)

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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 PASQUALE PATRICK SENATORE, 12 Petitioner, 13 14 v. RAYTHEL FISCHER, Warden, 15 No. 2:18-cv-00325-DAD-AC (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PETITION FOR HABEAS RELIEF (Doc. Nos. 1, 18) Respondent. 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254 in which he challenges his 2013 state court conviction for rape and 19 lewd and lascivious acts on a minor. (Doc. No. 1.) The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 21, 2023, the assigned magistrate judge issued findings and recommendations 21 22 recommending that the pending petition for federal habeas relief be denied. (Doc. No. 18.) 23 Specifically, the findings and recommendations concluded that the state court did not 24 unreasonably apply Supreme Court precedent in rejecting petitioner’s claim challenging the 25 exclusion of his sisters’ testimony at his trial to corroborate his motivation for living “off the 26 grid” while in New York. (Id. at 8–12.) In addition, the findings and recommendations 27 concluded that petitioner’s second claim, in which he challenges the sentence imposed upon him 28 ///// 1 1 as an erroneous application of California law, contained no assertion of a federal constitutional 2 violation and therefore failed to state a cognizable claim for federal habeas relief. (Id. at 13.) 3 The findings and recommendations were served on petitioner with notice that any 4 objections thereto were to be filed within twenty-one (21) days of the date of their service. No 5 objections to the pending findings and recommendations have been filed with the court, and the 6 time for doing so has passed. 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 8 de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes 9 that the magistrate judge’s findings and recommendations are supported by the record and proper 10 analysis. Therefore, the findings and recommendations will be adopted and petitioner’s request 11 for federal habeas relief will be denied on the merits. 12 In addition, the court declines to issue a certificate of appealability. A petitioner seeking a 13 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 14 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335– 15 36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only 16 issue a certificate of appealability if “jurists of reason could disagree with the district court’s 17 resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues 18 presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; 19 see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to 20 prove the merits of his case, he must demonstrate “something more than the absence of frivolity 21 or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. In the present 22 case, the court concludes that reasonable jurists would not find the court’s determination that the 23 petition should be denied debatable or wrong, or that the issues presented are deserving of 24 encouragement to proceed further. Petitioner has not made the required substantial showing of 25 the denial of a constitutional right. Therefore, the court will decline to issue a certificate of 26 appealability. 27 ///// 28 ///// 2 1 Accordingly: 2 1. 3 The findings and recommendations issued on August 21, 2023 (Doc. No. 18) are adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 5 3. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 6 4. The Clerk of the Court is directed to close this case. 7 IT IS SO ORDERED. 8 9 10 Dated: November 18, 2023 DALE A. DROZD 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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