1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUDOLFO A. ALVAREZ, No. 1:23-cv-00968-JLT-SKO (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS; DECLINING TO ISSUE 14 JEFF MACOMBER, Secretary, CERTIFICATE OF APPEALABILITY; AND DIRECTING CLERK OF COURT TO ENTER 15 Respondent. JUDGMENT AND CLOSE CASE (Doc. 5) 16 17 The assigned Magistrate Judge issued Findings and Recommendations to dismiss this 18 petition as successive. (Doc. 5.) Petitioner filed objections to the Findings and 19 Recommendations. (Doc. 6.) 20 According to

(b)(1)(C), the Court has conducted a de novo review of the 21 case. In his objections, Petitioner contends that he is not challenging his conviction or sentence. 22 However, in his petition, Petitioner claims that his 25 years-to-life sentence pursuant to a three- 23 strike enhancement was a draconic and archaic sentence constituting cruel and unusual 24 punishment. (Doc. 1 at 19-20.) To the extent that Petitioner seeks to challenge his sentence, his 25 petition is successive, and he has not demonstrated that he has authorization from the Ninth 26 Circuit Court of Appeals to file a successive petition. 27 Petitioner also takes issue with the conditions of his confinement. He contends that prison 28 overcrowding has resulted in prison conditions that are cruel and unusual in violation of the 1 Eighth Amendment. He argues that the medical and mental health care provided to inmates falls 2 below the standard required under the Eighth Amendment. (Doc. 6 at 2.) He notes that he is a 3 member of the class action suit in Brown v. Plata,

(2011). Such claims are not 4 cognizable in a federal habeas action. They must be raised either within the class action suit in 5 which Petitioner is a member or in a civil rights complaint under

. Preiser v. 6 Rodriguez,

(1973) 7 Having carefully reviewed the entire file, including Petitioner's objections, the Court 8 concludes that the Magistrate Judge’s Findings and Recommendations are supported by the 9 record and proper analysis. 10 In addition, the Court declines to issue a certificate of appealability. A state prisoner 11 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 12 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

(2003). The controlling statute in determining whether to issue a certificate of 14 appealability is

, which provides as follows:

15 (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 16 appeals for the circuit in which the proceeding is held.

17 (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 18 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. 19 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 20 appeal may not be taken to the court of appeals from—

21 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 22 court; or

23 (B) the final order in a proceeding under section 2255.

24 (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 25 right.

26 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 27 If a court denies a petitioner’s petition, the court may only issue a certificate of 28 1 | appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 2 | U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 3 | “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 4 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 5 || encouragement to proceed further.’” Slack v. McDaniel,

(2000) (quoting 6 | Barefoot v. Estelle,

(1983)). 7 In the present case, the Court finds that Petitioner has not made the required substantial 8 | showing of the denial of a constitutional right to justify the issuance of a certificate of 9 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 10 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 11 | proceed further. Thus, the Court declines to issue a certificate of appealability. Accordingly, 12 1. The Findings and Recommendations issued on July 5, 2023, (Doc. 5), are 13 ADOPTED IN FULL. 14 2. The petition for writ of habeas corpus is DISMISSED. 15 3. The Clerk of Court is directed to enter judgment and close the case. 16 4. The Court declines to issue a certificate of appealability. 17 18 IT IS SO ORDERED. 19 | Dated: _August 8, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28