(HC) Calmese v. Young ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KHELBY CALMESE, No. 1:19-cv-00798-LJO-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 12) 13 ORDER GRANTING RESPONDENT’S 14 v. MOTION TO DISMISS (Doc. No. 11) 15 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 16 S. YOUNG, Warden, ORDER DIRECTING CLERK OF COURT 17 TO ENTER JUDGMENT AND CLOSE Respondent. CASE 18 ORDER DECLINING TO ISSUE 19 CERTIFICATE OF APPEALABILITY 20 21 Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of 22 habeas corpus pursuant to 28 U.S.C. § 2241. On November 20, 2019, the Magistrate Judge 23 assigned to the case issued Findings and Recommendation to grant Respondent’s motion and 24 deny the petition. (Doc. Nos. 11, 12.) This Findings and Recommendation was served upon all 25 parties and contained notice that any objections were to be filed within thirty (30) days from the 26 date of service of that order. On December 6, 2019, Petitioner filed objections to the Magistrate 27 Judge’s Findings and Recommendations. (Doc. No. 13.) Respondent did not file a reply. 28 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 1 de novo review of the case. Petitioner raises several objections which the Court will address. 2 First, Petitioner objects to the Magistrate Judge’s finding that Petitioner failed to exhaust his 3 administrative remedies. (Doc. No. 13 at 2.) Petitioner states he attempted to file his BP-11 4 appeal, but for whatever reason, it was not transmitted to the appeals office. Assuming Petitioner 5 exhausted his administrative remedies, it is clear he is not entitled to relief on his claims. 6 Petitioner concedes he is not entitled to credit for any time spent in custody from the time 7 he was arrested on March 25, 2015, until March 25, 2016. (Doc. No. 13 at 2-3.) He claims, 8 however, that he is entitled to credit for the time period from March 25, 2016, until April 17, 9 2017, because that period of incarceration was not credited toward any sentence. (Doc. 13 at 3.) 10 Petitioner’s contention is incorrect. That period of time was credited against his state sentence. 11 As noted by the Magistrate Judge, a parole revocation hearing was held on March 13, 2015, and 12 parole was revoked. (Doc. 11-2 at 31.) Petitioner was returned to state custody to serve the 13 remainder of his eight-year term, with the maximum release date set for June 22, 2017. (Doc. 11- 14 2 at 13.) Petitioner is not entitled to credit against his federal sentence for this time period as that 15 would constitute double credit, which is barred under 18 U.S.C. § 3585(b). See United States v. 16 Wilson, 503 U.S. 329, 337 (1992). 17 Petitioner also complains that he did not receive a copy of Respondent’s motion to dismiss 18 and therefore did not receive notice and an opportunity to respond. Petitioner did file objections 19 to the Magistrate Judge’s Findings and Recommendations, however, and the Court has considered 20 all of his arguments. Therefore, the Court finds that Petitioner has been given notice and 21 opportunity to present his opposition to dismissal. 22 Having carefully reviewed the entire file, including Petitioner's objections, the Court 23 concludes that the Magistrate Judge’s Findings and Recommendation is supported by the record 24 and proper analysis. Petitioner's objections present no grounds for questioning the Magistrate 25 Judge's analysis. 26 In addition, the Court declines to issue a certificate of appealability. A prisoner seeking a 27 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 28 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335- 1 336 (2003). The controlling statute in determining whether to issue a certificate of appealability 2 is 28 U.S.C. § 2253, which provides as follows: 3 (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 4 in which the proceeding is held. 5 (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 6 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 7 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 8 not be taken to the court of appeals from— 9 (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 10 (B) the final order in a proceeding under section 2255. 11 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 12 made a substantial showing of the denial of a constitutional right. 13 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 14 15 If a court denies a petitioner’s petition, the court may only issue a certificate of 16 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 17 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 18 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 19 been resolved in a different manner or that the issues presented were ‘adequate to deserve 20 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 21 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 22 In the present case, the Court finds that Petitioner has not made the required substantial 23 showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 25 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 26 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 27 Accordingly, the Court orders as follows: 28 1. The Findings and Recommendations, filed November 20, 2019 (Doc. No. 12), is 1 ADOPTED IN FULL; 2 2. Respondent’s motion to dismiss (Doc. No. 11) is GRANTED; 3 3. The petition for writ of habeas corpus is DENIED WITH PREJUDICE; 4 4. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and, 5 5. The Court DECLINES to issue a certificate of appealability. 6 This order terminates the action in its entirety. 7 IT IS SO ORDERED. 8 9 Dated: January 4, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28