1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRES ESPINDOLA, Case No. 1:21-cv-01255 JLT CDB (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF COURT TO 14 MARTIN GAMBOA, CLOSE THE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 32) 16 17 Andres Espindola proceeds with his amended petition for writ of habeas corpus pursuant 18 to

, challenging his conviction of second-degree murder and asserting the trial 19 court erred through failing to instruct the jury on the lesser included offense of involuntary 20 manslaughter. (Doc. 13.) The magistrate judge found Petitioner fails to “show that the state 21 appellate court’s rejection of his claim was contrary to, or an unreasonable application of, clearly 22 established Supreme Court precedent, nor was it based on an unreasonable determination of the 23 facts.” (Doc. 32 at 11.) The magistrate judge determined that “Petitioner is not entitled to habeas 24 relief on his instructional error claim.” (Id. at 14;

.) Therefore, the magistrate judge 25 recommended the Court deny the petition. (Id. at 14.) 26 The Court served the Findings and Recommendations on Petitioner and notified him that 27 any objections were due within 14 days. (Doc. 32 at 15.) The Court advised Plaintiff that 1 | judge’s order.” (Ud. at 5, citing Wilkerson v. Wheeler,

(9th Cir. 2014).) 2 | Petitioner did not file objections, and the time to do so has passed. 3 According to

(b)(1), this Court performed a de novo review of the case. 4 | Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 5 || are supported by the record and proper analysis. Additionally, the Court finds a certificate of 6 | appealability should not issue. 7 “[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 8 || district court’s denial of his application.” Miller-El vy. Cockrell,

(2003). If 9 | the Court denies a petition on the merits, it may only issue a certificate of appealability “if jurists 10 | of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional 11 claims or that jurists could conclude the issues presented are adequate to deserve encouragement 12 | to proceed further.” Miller-El,

; Slack v. McDaniel,

(2000). 13 || While Petitioner is not required to prove the merits, he must show “something more than the 14 | absence of frivolity or the existence of mere good faith on his... part.” Miller-El,

| 338. The Court finds reasonable jurists would not find the determination that the petition should 16 | be denied debatable or wrong, or that Petitioner should be allowed to proceed further. Because 17 | Petitioner does not make the required substantial showing of the denial of a constitutional right, 18 || the Court declines to issue a certificate of appealability. Thus, the Court ORDERS: 19 1. The Findings and Recommendations issued on July 14, 2025 (Doc. 32) are 20 ADOPTED in full. 21 2. The amended petition for writ of habeas corpus (Doc. 13) is DENIED. 22 3. The Clerk of Court is directed to close the case. 23 4. The Court declines to issue a certificate of appealability. 24 25 | IT IS SO ORDERED. *° | Dated: _ August 7, 2025 Charis [Tourn 27 TED STATES DISTRICT JUDGE 28