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Gonzalez v. Biter

United States District Court, E.D. California

September 15, 2014

JOSE F. GONZALEZ, Petitioner,
v.
M. BITER, Warden at Kern Valley State Prison, Respondent.

ORDER DISMISSING PETITION FOR FAILURE TO STATE A CLAIM AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY DOC. 12

LAWRENCE J. O'NEILL, District Judge.

On April 30, 2014, Petitioner, a state prisoner serving a sentence of life without possibility of parole at Kern Valley State Prison, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his sentence violated the Rule Against Perpetuities. In findings and recommendations filed July 31, 2014, the Magistrate Judge explained why the Rule Against Perpetuities does not apply to Petitioner's sentence and recommended that the petition be dismissed.

The Clerk of Court served Petitioner with the findings and recommendations, which provided that Petitioner could object within thirty days. On August 28, 2014, Petitioner filed objections restating his argument and explaining that the Magistrate Judge misunderstood the application of the Rule Against Perpetuities to his sentence.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has reviewed applicable law and the record as a whole, including the petition for writ of habeas corpus, the findings and recommendations, and Petitioner's objections. Following careful review, the Court finds Petitioner's reliance on the Rule Against Perpetuities to be misplaced. The findings and recommendations are supported by the factual record and proper legal analysis.

Certificate of Appealability

A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:

(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 issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which

specific issues or issues satisfy the showing required ...


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