(HC) Andrus v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON A. ANDRUS, Case No. 1:19-cv-01540-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS THE 13 v. PETITION 14 J. SULLIVAN, (Doc. No. 10) 15 Respondent. 16 17 Petitioner Jason A. Andrus, a state prisoner without counsel, petitioned for a writ of 18 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 12, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition be dismissed for petitioner’s failure to exhaust his claims 22 by first presenting them to the highest court of the state for consideration. (Doc. No. 10.) The 23 findings and recommendations were served on petitioner and contained notice that objections 24 thereto were due within fourteen (14) days. (Id.) The time for filing objections has passed and 25 petitioner has failed to do so. 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 28 court finds the findings and recommendations to be supported by the record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the court now turns to whether a 2 certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 3 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 4 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 5 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 6 court issue or deny a certificate of appealability when entering a final order adverse to a 7 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 8 Cir. 1997). 9 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 10 issue a certificate of appealability when “the applicant has made a substantial showing of the 11 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 12 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 13 that) the petition should have been resolved in a different manner or that the issues presented 14 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 15 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 16 In the present case, the court concludes that petitioner has not made the required 17 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 18 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 19 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 20 petitioner is deserving of encouragement to proceed further with this habeas action. The court 21 therefore declines to issue a certificate of appealability. 22 Accordingly: 23 1. The findings and recommendations issued on May 12, 2020 (Doc. No. 10) are 24 adopted in full; 25 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed without prejudice 26 to filing a new petition following proper exhaustion of his claims; 27 3. The court declines to issue a certificate of appealability; and 28 ///// wOoOw 4:40 VV ET MARE VE MMU POO Ie eT □□ VM VI 1 4. The Clerk of Court is directed to assign a district judge to this case for the 2 purposes of closure and to close this case. 3 | IT IS SO ORDERED. 23 Dated: _ June 2, 2020 Pl AL ae 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28