(HC) Jackson v. Matteson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH A. JACKSON, Case No. 1:20-cv-00351-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION FOR LACK OF JURISDICTION 14 G. MATTESON, (Doc. No. 8) 15 Respondent. 16 17 Petitioner Kenneth A. Jackson, a state prisoner without counsel, seeks a writ of habeas 18 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 April 9, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending the petition be dismissed for lack of jurisdiction because it is a second or 22 successive petition which petitioner has not obtained permission to file from the Court of Appeals 23 as is required by 28 U.S.C. § 2244(b). (Doc. No. 8.) The findings and recommendations were 24 served on petitioner and contained notice that objections were due within thirty (30) days. (Id.) 25 On May 13, 2020, petitioner filed objections to the findings and recommendations. (Doc. No. 9.) 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, 28 including petitioner’s objections, the court finds the findings and recommendations to be 1 supported by the record and proper analysis. Petitioner’s objections, which argue that the 2 constraints applicable to second or successive petitions set forth in the Antiterrorism and 3 Effective Death Penalty Act, 28 U.S.C. § 2244(b), do not apply to his petition because he 4 challenges a judgment that is illegal and therefore invalid and/or void, are without merit. 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 dismisses a petition for a writ of habeas corpus, the court may only 14 issue a certificate of appealability when “the applicant has made a substantial showing of the 15 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 16 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 17 that) the petition should have been resolved in a different manner or that the issues presented 18 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 19 484 (2000) (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 April 9, 2020 (Doc. No. 8) are adopted in 28 full; wOow UV MARE VE MMU IO Ie eT OY VM VI 1 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 2 3. The court declines to issue a certificate of appealability; and 3 4. The Clerk of Court is directed to assign a district judge to this case for the purposes of 4 closure and to close this case. 5 | IT IS SO ORDERED. a " 6 Li. wh F Dated: _ June 2, 2020 wee TE OO 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28