Opinion
1:21-cv-00579-NE-JLT (HC)
06-18-2021
RAMON NAVARRO LUPERCIO, Petitioner, v. MACARIO MENDOZA, Respondent.
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. NOS. 1, 5)
Petitioner is a state prisoner proceeding in propria person a with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 12, 2021, the assigned magistrate judge issued findings and recommendations recommending that the petition be dismissed as am unauthorized second or successive petition. (Doc. No. 5.) Specifically, petitioner in this habeas action challenges his 2003 conviction for attempted murder with the use of a firearm, but has previously sought federal habeas relief in this court with respect to that same conviction numerous times and has failed to establish that he has obtained prior leave from the Ninth Circuit to file his successive petition. (See id. at 2-3.) The findings and recommendations were served upon all parties and contained notice that any objections were to be filed within twenty-one (21) days from the date of service of that order. To date, no party has filed objections.
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, 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. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). 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, the court orders as follows:
1. The findings and recommendations, filed April 12, 2021 (Doc. No. 5), are ADOPTED IN FULL;
2. The petition for writ of habeas corpus is DISMISSED;
3. The clerk of court is DIRECTED to assign a district judge to this case for the purpose of closing the case and then close this case; and,
4. The court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.