(HC) Stitt v. Pickett ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DERRIC MEREDITH RICK GENE No. 1:20-cv-00153-NONE-JLT (HC) STITT, 11 ORDER ADOPTING FINDINGS AND Petitioner, RECOMMENDATIONS, GRANTING 12 RESPONDENT’S MOTION TO DISMISS, v. DISMISSING PETITION FOR WRIT OF 13 HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND 14 JASON PICKETT, CLOSE CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. Nos. 15, 17) 16 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. On May 20, 2020, the assigned magistrate judge 21 issued findings and recommendations recommending that respondent’s motion to dismiss the 22 pending petition be granted, reasoning that the petition was untimely and that the record did not 23 suggest that petitioner was entitled to either statutory or equitable tolling of the applicable statute 24 of limitations. (Doc. No. 17.) The findings and recommendations were served upon all parties 25 and contained notice that any objections were to be filed within twenty-one days from the date of 26 service of that order. To date, no party has filed objections. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the wOAOe LOU UVM EVN INE VRP PIR ee OY eve 1 | findings and recommendations are supported by the record and proper analysis. 2 Having concluded that the pending petition must be dismissed, the court now turns to 3 | whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas 4 | corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal 5 | is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 6 | U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds without 7 | reaching the underlying constitutional claims, the court should issue a certificate of appealability 8 | jurists of reason would find it debatable whether the petition states a valid claim of the denial 9 | of aconstitutional right and that jurists of reason would find it debatable whether the district court 10 || was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a 11 | plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a 12 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 13 | that the petitioner should be allowed to proceed further.” Jd. In the present case, the court finds 14 | that reasonable jurists would not find the court’s determination that the petition should be 15 | dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, 16 | the court declines to issue a certificate of appealability. 17 Accordingly, the court orders as follows: 18 1. The findings and recommendations, filed May 20, 2020 (Doc. No. 17), are ADOPTED 19 | IN FULL; 20 2. Respondent’s motion to dismiss (Doc. No. 15) is GRANTED; 21 3. The petition for writ of habeas corpus is DISMISSED; 22 4. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the case; and, 23 5. The Court DECLINES to issue a certificate of appealability. 24 This order terminates the action in its entirety. 2) | IT IS SO ORDERED. 26 Li. wh F Dated: _ July 16, 2020 wee TE OO —- 27 UNITED STATES DISTRICT JUDGE 28