(HC) Kindred v. California Department of State Hospitals Coalinga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, No. 1:19-cv-01093-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 CALIFORNIA DEPARTMENT OF PETITION FOR WRIT OF HABEAS STATE HOSPITALS - COALINGA, CORPUS 15 Respondent. (Doc. No. 6) 16 17 18 Petitioner Richard Scott Kindred is a civil detainee 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 January 29, 2020, the assigned magistrate judge issued findings and recommendations, 23 recommending that the pending petition for federal habeas relief be denied due to lack of 24 jurisdiction, failure to exhaust administrative remedies, and failure to state a cognizable habeas 25 claim. (Doc. No. 6 at 2.) However, the magistrate judge also notified petitioner that any denial of 26 the petition would be without prejudice to him seeking relief by filing a civil right action pursuant 27 to 42 U.S.C. § 1983. (Id. at 4.) The findings and recommendations were served upon both 28 parties and contained notice that any objections thereto were to be filed within fourteen (14) days 1 from the date of service of the order. No objections have been filed and the time in which to do 2 so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 findings and recommendations are supported by the record and proper analysis. 6 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 7 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 8 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 9 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 10 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 11 court issue or deny a certificate of appealability when entering a final order adverse to a 12 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 13 Cir. 1997). 14 If, as here, a court denies a petition for a writ of habeas corpus, the court may only issue a 15 certificate of appealability when “the applicant has made a substantial showing of the denial of a 16 constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must 17 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 18 should have been resolved in a different manner or that the issues presented were ‘adequate to 19 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 20 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 21 In the present case, the court concludes that petitioner has not made the required 22 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 23 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 24 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 25 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 26 a certificate of appealability. 27 ///// 28 ///// 1 Accordingly: 2 1. The findings and recommendations issued on January 29, 2020 (Doc. No. 6), are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is denied without prejudice to 5 petitioner seeking relief by filing a civil rights action under 42 U.S.C. 8 1983; 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 18, 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