(HC) Lowe v. Douglas County ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD LOWE, No. 1:18-cv-01225-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DOUGLAS COUNTY; and TUOLUMNE PETITION FOR A WRIT OF HABEAS COUNTY, CORPUS 15 Respondents. (Doc. No. 9) 16 17 18 Petitioner Richard Lowe, a former detainee at the Tuolumne County Jail, is proceeding 19 pro se and in forma pauperis on a petition for a writ of habeas corpus under 28 U.S.C. § 2254. 20 (Doc. No. 1). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 §636(b)(1)(B) and Local Rule 302. 22 On August 1, 2019, the assigned magistrate judge issued findings and recommendations, 23 recommending that the pending petition seeking federal habeas relief be denied due to lack of 24 jurisdiction, petitioner’s failure to first exhaust his claims in state court, and petitioner’s failure to 25 state a cognizable claim for federal habeas relief. (Doc. No. 9.) The findings and 26 recommendations were served upon all parties and contained notice that any objections thereto 27 were to be filed within fourteen (14) days from the date of service of the order. (Id. at 4.) No 28 objections have been filed, and the time in which to do so has now passed. 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court concludes that the findings and recommendations are supported by the 4 record and proper analysis. 5 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 6 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 7 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 8 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 9 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 10 court issue or deny a certificate of appealability when entering a final order adverse to a 11 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 12 Cir. 1997). 13 If, as here, a court denies a petition for a writ of habeas corpus, the court may only issue a 14 certificate of appealability when “the applicant has made a substantial showing of the denial of a 15 constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must 16 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 17 should have been resolved in a different manner or that the issues presented were ‘adequate to 18 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 19 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 20 In the present case, the court concludes that petitioner has not made the required 21 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 22 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 23 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 24 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 25 a certificate of appealability. 26 Accordingly: 27 1. The findings and recommendations issued on August 1, 2019 (Doc. No. 9), are 28 adopted in full; 1 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 2 3. The court declines to issue a certificate of appealability, and 3 4. The Clerk of the Court is directed to close this case. 4 | IT IS ORDERED. = □□ >| Dated: _Mareh 9, 2020 YL A Dong 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28