(HC) McCoy-Gordon v. Pelican Bay State Prison ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMARREA MCCOY-GORDON, Case No. 1:19-cv-00832-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 13 v. EXHAUST CLAIMS 14 PELICAN BAY STATE PRISON, ECF No. 15 15 Respondent. OBJECTIONS DUE IN FOURTEEN DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner DeMarrea McCoy-Gordon, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to 21 the habeas proceeding must examine the habeas petition and order a response to the petition 22 unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 23 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 24 On October 31, 2019, we ordered petitioner to show cause why his petition should not be 25 dismissed for failure to exhaust his claims in state court. ECF No. 15; see 28 U.S.C. 26 § 2254(b)(1)(A); Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018). We gave petitioner 30 27 days to respond to the order to show cause. ECF No. 15. The time for responding to the order 28 has passed and petitioner has failed to respond. Therefore, we find that petitioner has failed to 1 show cause why his petition should not be dismissed for failure to exhaust his habeas claims in 2 state court and recommend that the petition be dismissed. 3 Certificate of Appealability 4 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 5 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 7 requires a district court to issue or deny a certificate of appealability when entering a final order 8 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 9 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 10 without reaching the underlying constitutional claims, the court should issue a certificate of 11 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 12 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 13 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 14 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 15 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 16 petition or that the petitioner should be allowed to proceed further.” Id. 17 Here, reasonable jurists would not find our conclusion debatable or conclude that 18 petitioner should proceed further. Thus, the court should decline to issue a certificate of 19 appealability. 20 Order 21 The clerk of court is directed to assign this case to a district judge who will review the 22 findings and recommendations. 23 Findings and Recommendations 24 We recommend that the court dismiss the petition. ECF No. 1. These findings and 25 recommendations are submitted to the U.S. District Court judge presiding over this case under 28 26 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 27 Court, Eastern District of California. Within 14 days of the service of the findings and 28 recommendations, any party may file written objections to the findings and recommendations 1 | with the court and serve a copy on all parties. That document must be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations.” The district judge will then review the 3 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 4 5 IT IS SO ORDERED. ° vi. —N prssann — Dated: _ February 7, 2020 7 UNI STATE AGISTRATE JUDGE 8 9 10 | No. 206. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28