(HC) Jackson v. Neuschmid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY PECK JACKSON, No. 1:20-cv-00198-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY AND FOR 14 ROBERT NEUSCHMID, et al. FAILURE TO STATE A COGNIZABLE CLAIM 15 Respondents. (Doc. No. 12) 16 17 Petitioner Gregory Peck Jackson, a state prisoner proceeding without counsel, petitioned 18 for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On 20 May 22, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition be dismissed both because it is untimely and because it 22 fails to allege a violation of clearly established federal law. (Doc. No. 12.) The findings and 23 recommendations also recommended that a certificate of appealability not be issued. (Id.) The 24 findings and recommendations were served on petitioner and contained notice that objections 25 thereto were due within 14 days of service. (Id.) Petitioner did not file any objections and the 26 time to do so has passed. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 28 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 1 court concludes that the findings and recommendations are supported by the record and proper 2 analysis. 3 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 4 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 5 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 6 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 7 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 8 court issue or deny a certificate of appealability when entering a final order adverse to a 9 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 10 Cir. 1997). 11 If, as here, a court dismisses a petition for a writ of habeas corpus, the court may only 12 issue a certificate of appealability when “the applicant has made a substantial showing of the 13 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 14 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 15 that) the petition should have been resolved in a different manner or that the issues presented 16 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 17 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 18 In the present case, the court concludes that petitioner has not made the required 19 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 20 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 21 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 22 petitioner is deserving of encouragement to proceed further with this habeas action. The court 23 therefore declines to issue a certificate of appealability. 24 Accordingly: 25 1. The findings and recommendations issued on May 22, 2020 (Doc. No. 12) are adopted in 26 full; 27 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 28 3. The court declines to issue a certificate of appealability; and wOow 4:OU □□ MEARE VET MMU tw POO Ve OY VV 1 4. The Clerk of Court is directed to assign a district judge to this case for the purposes of 2 closure and to close this case. 3 | IT IS SO ORDERED. 23 Dated: _ July 16, 2020 Yel A Dare 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