(HC) Gilbert v. On Habeas Corpus ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHAKA GILBERT, Case No. 1:19-cv-00734-AWI-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 ON HABEAS CORPUS, TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (ECF No. 7) 17 18 Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 19 U.S.C. § 2254. On July 24, 2019, the Magistrate Judge issued Findings and Recommendation 20 that recommended the petition be dismissed without prejudice for failure to specify any grounds 21 for relief and failure to exhaust state judicial remedies. (ECF No. 7). This Findings and 22 Recommendation was served on Petitioner and contained notice that any objections were to be 23 filed within thirty (30) days of the date of service of that order. To date, Petitioner has filed no 24 objections, and the time for doing so has passed. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 27 the Findings and Recommendation is supported by the record and proper analysis, and there is no need to modify the Findings and Recommendation. 1 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining 4 whether to issue a certificate of appealability provides as follows: 5 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 6 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 7 (b) There shall be no right of appeal from a final order in a 8 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 9 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 10 (c) (1) Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the court of appeals from– 12 (A) the final order in a habeas corpus proceeding in which 13 the detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) 16 only if the applicant has made a substantial showing of the denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall 18 indicate which specific issue or issues satisfy the showing required by paragraph (2). 19 20 28 U.S.C. § 2253. 21 If a court denies habeas relief on procedural grounds without reaching the underlying 22 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 23 would find it debatable whether the petition states a valid claim of the denial of a constitutional 24 right and that jurists of reason would find it debatable whether the district court was correct in its 25 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 26 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 27 could not conclude either that the district court erred in dismissing the petition or that the 1 In the present case, reasonable jurists would not find the Court’s determination that 2 | Petitioner’s habeas petition should be dismissed debatable or wrong, or that Petitioner should be 3 | allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendation issued on July 24, 2019 (ECF No. 7) is 6 ADOPTED IN FULL; 7 2. The petition for writ of habeas corpus is DISMISSED for failure to specify grounds 8 for relief and failure to exhaust state judicial remedies; 9 3. The Clerk of Court is DIRECTED to CLOSE the case; and 10 4. The Court DECLINES to issue a certificate of appealability. 11 Db IT IS SO ORDERED. 13 | Dated: _November 21, 2019 —= ZS Cb □□ SENIOR DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28