Opinion
1:21-cv-00296-NONE-SKO (HC)
09-27-2021
RUBEN HERRERA, JR., Petitioner, v. CONNIE GIBSON, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND THEN CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
(DOC. NO. 17)
Petitioner Ruben Herrera, Jr., is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 8, 2021, the assigned magistrate judge issued findings and recommendations recommending that respondent’s motion to dismiss be granted and that the pending petition be dismissed as time–barred under the applicable statute of limitations. (Doc. Nos. 15, 17.) Those findings and recommendations were served upon all parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. On July 1, 2021, petitioner filed objections to the findings and recommendations. (Doc. No. 18.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, including petitioner’s objections, the court concludes that the magistrate judge’s findings and recommendations are supported by the record and proper analysis.
In addition, the court declines to issue a certificate of appealability. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003); 28 U.S.C. § 2253. If a court denies a petitioner’s petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
In the present case, the court finds that petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the court’s determination that petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the court declines to issue a certificate of appealability.
Accordingly, 1. The findings and recommendations issued on June 8, 2021, (Doc. No. 17), are adopted in full;
2. Respondent’s motion to dismiss (Doc. No. 11), is granted;
3. The petition for writ of habeas corpus is dismissed with prejudice;
4. The Clerk of the Court is directed to assign a district judge to this case for the purpose of closing the case and then to close the case; and
5. The court declines to issue a certificate of appealability.
IT IS SO ORDERED.