(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, No. 1:19-cv-00832-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 PELICAN BAY STATE PRISON, PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 17) 16 17 18 Petitioner DeMarrea McCoy-Gordon is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On February 7, 2020, the assigned magistrate judge issued findings and recommendations, 23 recommending that the pending petition for federal habeas relief be dismissed due to petitioner’s 24 failure to first exhaust his claims in state court as is required. (Doc. No. 17.) The findings and 25 recommendations were served on both parties and contained notice that any objections thereto 26 were to be filed within fourteen (14) days from the date of service of the order. (Id.) No 27 objections have been filed, and the time in which to do so has now passed. 28 ///// 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 at this time, the court now 6 turns to whether a certificate of appealability should issue. A prisoner seeking a writ of habeas 7 corpus has no absolute entitlement to appeal a district court’s denial of his petition, as an appeal is 8 only allowed under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 9 322, 335-336 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires 10 that a district court issue or deny a certificate of appealability when entering a final order adverse 11 to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 12 (9th 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 at this time due to his failure to first exhaust his claims in 24 state court, wrong or debatable and they would not conclude that petitioner is deserving of 25 encouragement to proceed further in this action. The court therefore declines to issue a certificate 26 of appealability. 27 ///// 28 ///// 1 Accordingly: 2 1. The findings and recommendations issued on February 7, 2020 (Doc. No. 17), are 3 adopted; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed without prejudice 5 due to petitioner’s failure to first exhaust his claims in state court; 6 3. The court declines to issue a certificate of appealability; and 7 4. The Clerk of the Court is directed to close this case. 8 | IT IS ORDERED. a 9 Li. wh F Dated: _ March 12, 2020 ASR rr 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28