(HC) Escalon v. MCSP Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD V. ESCALON, No. 1:19-cv-00434-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 MCSP WARDEN, (Doc. No. 6) 15 Respondent. 16 17 Petitioner Richard V. Escalon, a state prisoner without counsel, seeks writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 6, 2019, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition be dismissed without prejudice. (Doc. No. 6.) The 22 findings and recommendations were served on petitioner and contained notice that any objections 23 thereto were to be filed within fourteen days after service. (Id. at 4.) To date, petitioner has not 24 filed objections, and the time for doing so has passed. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 27 court finds the findings and recommendations to be supported by the record and proper analysis. 28 ///// 1 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 2 | writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 3 || circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 4 | 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 5 | certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 6 | Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of 7 | appealability will not issue unless a petitioner makes “a substantial showing of the denial of a 8 | constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that 9 | “jurists of reason could disagree with the district court’s resolution of his constitutional claims or 10 | that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 11 further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 | Reasonable jurists would not find the court’s decision debatable or conclude that the petition 13 | should proceed further. Thus, the court declines to issue a certificate of appealability. 14 Accordingly: 15 1. The findings and recommendations issued on August 6, 2019 (Doc. No. 6) are 16 adopted in full; 17 2. This petition for writ of habeas corpus is dismissed without prejudice; 18 3. The court declines to issue a certificate of appealability; and 19 4. The Clerk of the Court is directed to enter judgment in favor of respondent and 20 close this case. 21 | IT IS SOORDERED. me □ Dated: _ January 12, 2020 a aL, A 5 anys 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28