(HC) Hairston v. Zulfa ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBEY KURT HAIRSTON, No. 1:19-cv-00023-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 DAVID ZULFA, (Doc. No. 12) 15 Respondent. 16 17 Petitioner Robey Kurt Hairston is a state prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2554. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 20 On November 14, 2019, the assigned magistrate judge issued findings and 21 recommendations, recommending that the petition be dismissed without prejudice due to 22 petitioner’s failure to exhaust his claims by first presenting them to the state’s highest court and 23 failure to state a cognizable claim for federal habeas relief. (Doc. No. 12.) The findings and 24 recommendations were served on petitioner with notice that any objections thereto were to be 25 filed within fourteen (14) days of the service of the findings and recommendations. (Id. at 2.) No 26 objections were filed and the time for doing so has passed. 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 1 | magistrate judge’s findings and recommendations are supported by the record and proper 2 | analysis. 3 In addition, having concluded that the pending petition must be dismissed, the court now 4 | turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of 5 | habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 6 | appeal is only allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 7 | (2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds 8 | without reaching the underlying constitutional claims, the court should issue a certificate of 9 | appealability “if jurists of reason would find it debatable whether the petition states a valid claim 10 | of the denial of a constitutional right and that jurists of reason would find it debatable whether the 11 || district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 | “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 13 || the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 14 | petition or that the petitioner should be allowed to proceed further.” Jd. In the present case, the 15 || court finds that reasonable jurists would not find the court’s determination that the petition should 16 | be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 17 | Therefore, the court declines to issue a certificate of appealability. 18 Accordingly: 19 1. The findings and recommendations issued on November 14, 2019 (Doc. No. 12) 20 are adopted in full; 21 2. The petition for writ of habeas corpus is dismissed without prejudice due to 22 petitioner’s failure to exhaust his claims by first presenting them to the highest 23 state court and failure to state a claim; 24 3. The court declines to issue a certificate of appealability; and 25 4. The Clerk of Court is directed to close this case. 26 | IT IS SO ORDERED. me □ 27 Li fa £5 Dated: _ January 13, 2020 See 1" Sage 28 UNITED STATES DISTRICT JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28