(HC) Hubbard v. People of Kings County California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, Case No. 1:19-cv-00132-NONE-JDP (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION 14 PEOPLE OF KINGS COUNTY AND FOR FAILURE TO EXHAUST CLAIMS CALIFORNIA, 15 (Doc. No. 19) Respondent. 16 17 18 19 Petitioner Zane Hubbard, a state prisoner proceeding without counsel, seeks a writ of 20 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On April 20, 2020, 22 the assigned magistrate judge issued findings and recommendations recommending that the third 23 claim presented in the pending petition be dismissed for lack of jurisdiction and that the fourth 24 claim presented be dismissed for failure to exhaust that claim by first presenting it to the highest 25 state court. (Doc. No. 19.) The findings and recommendations also recommended that a 26 certificate of appealability not be issued. (Id.) The findings and recommendations were served 27 on petitioner and contained notice that objections thereto were due within 30 days of service. 28 ///// 1 (Id.) Petitioner did not file any objections to the pending findings and recommendations and the 2 time to do so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court concludes that the findings and recommendations are supported by the record and proper 6 analysis. 7 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 8 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 9 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 10 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 11 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 12 court issue or deny a certificate of appealability when entering a final order adverse to a 13 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 14 Cir. 1997). 15 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 16 issue a certificate of appealability when “the applicant has made a substantial showing of the 17 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 18 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 19 that) the petition should have been resolved in a different manner or that the issues presented 20 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 21 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 22 In the present case, the court concludes that petitioner has not made the required 23 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 25 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 26 petitioner is deserving of encouragement to proceed further with this habeas action. The court 27 therefore declines to issue a certificate of appealability. 28 ///// 4:40 EVO MARE VET MMU IO Ieee TOY VM VI 1 Accordingly: 2 1. The findings and recommendations issued on April 20, 2020 (Doc. No. 19) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 5 3. The court declines to issue a certificate of appealability; and 6 4. The Clerk of Court is directed to assign a district judge to this case for the 7 purposes of closure and to close this case. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ June 2, 2020 wee TE OO 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28