(HC) Nelson v. Lake ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL DEWITT NELSON, No. 1:19-cv-01487-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 STEVEN LAKE, Warden, PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 6) 16 17 18 Petitioner Cecil Dewitt Nelson is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to 20 a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 22, 2019, the assigned magistrate judge issued findings and 22 recommendations, recommending that the petition be denied for lack of jurisdiction because 23 petitioner (1) does not present a claim of actual innocence and (2) does not contend that he did 24 not have an unobstructed procedural shot to assert his habeas claims, both of which requirements 25 must be met when a federal prisoner challenges the legality of his detention under § 2241 as 26 opposed to § 2255. (Doc. No. 6.) The findings and recommendations contained notice that any 27 objections thereto were to filed within thirty (30) days after service. (Id. at 6.) Petitioner has not 28 filed objections, and the time in which to do so has since expired. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 | court finds the findings and recommendations to be supported by the record and proper analysis. 4 Having concluded that the pending petition must be denied, the court now turns to 5 | whether a certificate of appealability should issue. Harrison v. Ollison, 519 F.3d 952, 958 (9th 6 | Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 7 | motion, the petitioner cannot appeal from the denial of that petition without a COA.”) (citing 8 | Porter v. Adams, 244 F.3d 1006, 1006-07 (9th Cir. 2001)). A petitioner seeking a writ of habeas 9 | corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal 10 | is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 11 | U.S.C. § 2253. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a petitioner 12 | “must make a substantial showing of the denial of a constitutional right, . . . includ[ing] showing 13 | that reasonable jurists could debate whether (or, for that matter, agree that) the petition should 14 | have been resolved in a different manner or that the issues presented were ‘adequate to deserve 15 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting 16 | Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that 17 || reasonable jurists would not find the court’s determination that the pending petition should be 18 | denied to be debatable or wrong, or that petitioner should be allowed to proceed further. 19 For the reasons set forth above, 20 1. The findings and recommendations (Doc. No. 6) are adopted in full; 21 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 22 3. The Clerk of the Court is directed to close this case; and 23 4. The court declines to issue a certificate of appealability. 24 | IT IS SO ORDERED. me □ Dated: _ February 10, 2020 aL Al 7 ae 26 UNITED STATES DISTRICT JUDGE 27 28