Opinion
1:21-cv-00594-NONE-SKO (HC)
07-14-2021
LUIS ALBERTO ALARCON NAVA, Petitioner, v. On Habeas Corpus, 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. NO. 5)
Petitioner Luis Alberto Alarcon Nava 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 April 13, 2021, the assigned magistrate judge issued findings and recommendations recommending that the petition be dismissed. (Doc. No. 5 at 1-2.) Because petitioner already had a habeas petition pending before this court (No. 1:20-cv-01378-HBK) when he filed the instant petition, this petition would normally be construed as a motion to amend the earlier petition. (Doc. No. 5 at 2 (citing Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).) However, it appears that petitioner intended to file this new petition with the California Supreme Court and thus, the magistrate judge found that construing the new petition as a motion to amend would be inappropriate. (See Doc. No. 1.) Those findings and recommendations were served upon all parties and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2.) On May 27, 2021, petitioner filed objections to the findings and recommendations. (Doc. No. 8.) However, those objections provided no basis upon which to call the pending findings and recommendations into question, but in fact provided further support for the conclusion reached by those findings and recommendations.
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. 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, 1. The findings and recommendations issued on April 13, 2021, (Doc. No. 5), are adopted in full;
2. The petition for writ of habeas corpus, (Doc. No. 1), 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 to enter judgment and close the case; and
4. The court declines to issue a certificate of appealability.
IT IS SO ORDERED.