(HC) Beavers v. Kettering ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE DUPREE BEAVERS , No. 1:19-cv-00521-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 JEFF KETTERING, (Doc. No. 8) 15 Respondent. 16 17 Petitioner Eddie Dupree Beavers, who is presently on probation, seeks the issuance of a writ 18 of habeas corpus under 28 U.S.C. § 2254. He is proceeding in this action without counsel and on his 19 own behalf. (Doc. No. 1.) The matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On September 25, 2019, the assigned magistrate judge issued findings and 22 recommendations recommending that because the allegations of the petition established that 23 petitioner was currently in the process of challenging his underlying conviction in the state courts 24 (Doc. No. 1 at 5), this court should abstain from exercising jurisdiction over this habeas action 25 and dismiss the pending petition without prejudice.1 (Doc. No. 8.) The findings and 26 recommendations were served on petitioner and contained notice that any objections thereto were 27 1 The findings and recommendations do not mention a failure to first exhaust claims in state court 28 despite the alleged pendency of a state habeas petition before the California Court of Appeal. 1 | to be filed within fourteen days after service. (/d. at 3.) To date, petitioner has not filed 2 | objections, and the time for doing so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 4 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 | court finds the findings and recommendations to be supported by the record and proper analysis. 6 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 7 | writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 8 || circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 9 | 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 10 || certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 11 | Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as 12 | here, the court denies habeas relief on procedural grounds without reaching the underlying 13 || constitutional claims, the court will issue a certificate of appealability “if jurists of reason would 14 | find it debatable whether the petition states a valid claim of the denial of a constitutional right and 15 | that jurists of reason would find it debatable whether the district court was correct in its 16 | procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists would not 17 | find the court’s decision debatable or conclude that the petition should proceed further. Thus, the 18 | court declines to issue a certificate of appealability. 19 Accordingly: 20 1. The findings and recommendations issued on September 25, 2019 (Doc. No. 8) are 21 adopted in full; 22 2. This petition for writ of habeas corpus is dismissed without prejudice; 23 3. The court declines to issue a certificate of appealability; and 24 4. The Clerk of the Court is directed to close this case. 25 | IT IS SO ORDERED. me □ 26 Li fa £5 Dated: _ January 16, 2020 See 1" Sage 27 UNITED STATES DISTRICT JUDGE 28 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