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Serna v. McDonald

United States District Court, E.D. California

September 2, 2014

ANTOEVINO ROCKY SERNA, Petitioner,
v.
M. McDONALD, Respondent.

ORDER VACATING JUDGMENT ENTERED MARCH 14, 2014 ORDER CONSTRUING MARCH 14, 2014 ORDER DENYING PETITION AS FINDINGS AND RECOMMENDATIONS ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY PETITION (Doc. 29) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE (Doc. 1) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DENYING CERTIFICATE OF APPEALABILITY

ANTHONY W. ISHII, Senior District Judge.

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

On March 14, 2014, after both parties had responded to the merits of the petition, the Magistrate Judge assigned to this case filed an order denying the petition on its merits and ordered that judgment be entered against Petitioner. (Docs. 29 & 30). On April 14, 2014, Petitioner filed objections to the "Findings and Recommendations" to deny the petition. (Doc. 32). On August 11, 2014, Petitioner filed a petition for writ of mandamus in the United States Court of Appeals, Ninth Circuit, seeking an order from that Court to compel this Court to rule on the issuance of a certificate of appealability. (Doc. 33).

DISCUSSION

Because both parties had not consented to the jurisdiction of the Magistrate Judge at the time the order denying the petition was filed, the order denying the petition and the order for entry of judgment were unauthorized. The order denying the petition should have been filed as Findings and Recommendations. Accordingly, the Court must vacate the judgment entered by the Magistrate Judge on March 14, 2014. (Doc. 30). However, the Court will construe the Magistrate Judge's March 14, 2014 order denying the petition to be Findings and Recommendations to deny the petition on its merits. Petitioner has already filed his objections to those Findings and Recommendations. (Doc. 32).

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this 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 construed Findings and Recommendations is supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate Judge's analysis. Petitioner's primary argument in the objections is that he was drunk and had smoked a large amount marijuana. As such, Petitioner contends he was unable to form the required premeditation for first degree murder. This argument is not raised in the petition, and it does not appear to have ever been raised before the California Courts. As such, it is improper for the Court to consider this late argument.

Moreover, 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). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(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 ...

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