1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAUL MIRANDA RAMIREZ, No. 1:24-cv-00163 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 5)

14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING 15 CDCR Secretary, CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 Respondent. ORDER DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY 18 19 Saul Miranda Ramirez is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to

, challenging a parole suitability 21 determination by the California Board of Parole Hearings and asserting ineffective assistance of 22 counsel. The magistrate judge observed that the Supreme Court held “the federal habeas court’s 23 inquiry into whether a prisoner who has been denied parole received due process is limited to 24 determining whether the prisoner ‘was allowed an opportunity to be heard and was provided a 25 statement of the reasons why parole was denied.’” (Doc. 5 at 2, quoting Swarthout v.

(2001).) The magistrate judge found, “Petitioner does not contend he was denied these 27 procedural due process guarantees, and a review of the record shows that he was not.” (Id.) 28 Therefore, the magistrate judge found “Petitioner’s claims are foreclosed by the Supreme Court’s 1 decision in Swarthout,” and recommended the petition be “dismissed for failure to state a claim 2 upon which federal habeas relief can be granted.” (Id. at 2-3, emphasis omitted.) 3 Petitioner filed objections to the Findings and Recommendations. (Doc. 6.) Petitioner 4 contends the Court has jurisdiction to review his claim of ineffective assistance of counsel. He 5 cites several cases in support, including Nichols v. Arnold,

(C.D. Cal. 2018); 6 Nichols v. Pfeiffer,

(C.D. Cal. 2019); and Haro v. Fox,

7 (E.D. Cal. 2018). (Doc. 6 at 2.) Importantly, in these cases, the courts summarily dismissed the 8 claims of ineffective assistance because there is no right to counsel at parole consideration 9 hearings. Consequently, the court found there could not be a constitutional violation. See Pfeiffer, 10

, *4 (citing Dorado v. Kerr,

(9th Cir.), cert. denied, 409

(1972); Arnold,

, *6; Fox,

, *2. Petitioner also 12 cites to Lopez v. Warden,

(9th Cir. 2010), but his reliance upon the case is 13 misplaced as Lopez was decided before Swarthout v. Cooke,

(2011). 14 According to

(b)(1)(C), the Court conducted a de novo review of the case. 15 Having carefully reviewed the entire file, including Petitioner’s objections, the Court concludes 16 the Findings and Recommendations are supported by the record and proper analysis. 17 In addition, the Court declines to issue a certificate of appealability. A state prisoner 18 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 19 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 21 appealability is

, which provides as follows:

22 (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 23 appeals for the circuit in which the proceeding is held.

24 (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 25 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. 26 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 27 appeal may not be taken to the court of appeals from—

28 (A) the final order in a habeas corpus proceeding in which the 1 detention complained of arises out of process issued by a State court; or 2 (B) the final order in a proceeding under section 2255. 3 (2) A certificate of appealability may issue under paragraph (1) only if the 4 applicant has made a substantial showing of the denial of a constitutional right. 5 (3) The certificate of appealability under paragraph (1) shall indicate which 6 specific issue or issues satisfy the showing required by paragraph (2). 7 | Ifacourt denies a petition, the court may only issue a certificate of appealability when a 8 | petitioner makes a substantial showing of the denial of a constitutional right.

| 2253(c)(2). To make a substantial showing, Petitioner must establish that “reasonable jurists 10 | could debate whether (or, for that matter, agree that) the petition should have been resolved in a 11 | different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 12 | further.’” Slack v. McDaniel,

(2000) (quoting Barefoot v. Estelle, 463 US. 13 | 880, 893 (1983)). 14 In the present case, Petitioner has not made the required substantial showing of the denial 15 | of aconstitutional right to justify the issuance of a certificate of appealability. Reasonable jurists 16 | would not find the determination that Petitioner is not entitled to federal habeas corpus relief 17 || debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court ORDERS: 18 1. The Findings and Recommendations issued on February 8, 2024 (Doc. 5) are 19 ADOPTED in full. 20 2. The petition for writ of habeas corpus is DISMISSED with prejudice. 21 3. The Clerk of Court is DIRECTED to enter judgment and close the case. 22 4. The Court declines to issue a certificate of appealability. 23 This order terminates the action in its entirety. 24 95 IT IS SO ORDERED. 26 Dated: _ March 6, 2024 : TED STATES DISTRICT JUDGE 27 28