United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO.
11) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING TO ISSUE CERTIFICATE OF
is a state prisoner proceeding in propria persona
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. On May 30, 2019, the Magistrate Judge
assigned to the case issued Findings and Recommendation to
summarily dismiss the petition for failure to state a
cognizable ground for relief. (Doc. No. 11.) This Findings
and Recommendation was served upon all parties and contained
notice that any objections were to be filed within thirty
(30) days from the date of service of that order. Petitioner
was granted two extensions of time and filed his objections
on August 30, 2019. (Doc. No. 16.)
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 Recommendation
is supported by the record and proper analysis.
Petitioner's objections present no grounds for
questioning the Magistrate Judge's analysis.
addition to challenging the Magistrate Judge's
determinations, Petitioner presents additional claims in his
objections concerning the underlying conviction and sentence.
He claims that he is actually innocent, that the jury was
unreasonable and biased, and that his sentence constitutes
cruel and unusual punishment. The Court notes that Petitioner
has already sought relief on these claims in a petition for
writ of habeas corpus filed in the Central District of
California. See Ray v. Cate, Case No.
4:10-cv-01582-YGR (C.D. Cal. 2013). The district court denied
the petition on the merits on June 6, 2013. Id. Any
challenge to the underlying conviction and sentence is
therefore successive and must be dismissed. See 28
U.S.C. § 2244(b).
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
(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
(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 issue or issues satisfy the
showing required by paragraph (2).
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)).
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