(HC) Myers v. Fresno Police Department ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY E. MYERS, No. 1:20-cv-00472-NONE-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, 14 FRESNO POLICE DEPARTMENT, et al., DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE 15 Respondent. CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 (Doc. No. 9) 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In the pending habeas petition, petitioner raises a 21 speedy trial claim with respect to his ongoing Fresno County criminal proceeding. (Id. at 2–3.) 22 Petitioner also alleges that he was unlawfully arrested, subject to assault and sexual assault while 23 detained, had his legal documents confiscated, and was denied penicillin. (Id. at 4, 12, 17, 19). 24 On May 13, 2020, the assigned magistrate judge issued findings and recommendations 25 recommending that the petition be dismissed without prejudice because petitioner’s speedy trial 26 allegations were barred by Younger v. Harris, 401 U.S. 37 (1971), and the remaining allegations 27 did not state cognizable claims for federal habeas corpus relief. (Doc. No. 9.) The findings and 28 recommendations were served on Petitioner and contained notice that any objections were to be 1 filed within thirty (30) days of the date of service of the findings and recommendation. On May 2 18, 2020, the court received a document, which the court construes as objections to the findings 3 and recommendations. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) 4 (courts have a duty to construe pro se pleadings and motions liberally). 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 7 objections, the court holds the findings and recommendations to be supported by the record and 8 proper analysis.1 The magistrate judge’s reasoning set forth in the findings and recommendations 9 is sound, and petitioner’s objections fail to address that reasoning in any material way. 10 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 11 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 12 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 13 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 14 § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 15 whether (or, for that matter, agree that) the petition should have been resolved in a different 16 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 17 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 18 880, 893 & n.4 (1983)). 19 In the present case, the court finds that reasonable jurists would not find the court’s 20 determination that the petition should be dismissed debatable or wrong, or that petitioner should 21 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 22 23 1 The court notes that after the time for filing objections passed, the court received two letters from petitioner. Attached to the first letter is a petition for writ of habeas corpus that appears to 24 be nearly identical to the petition that commenced this proceeding along with an incomplete copy of a Fresno County Superior Court order denying state habeas relief. (Doc. No. 11.) Attached to 25 the second letter is a prisoner civil rights complaint that appears to be nearly identical to the complaint previously filed by petitioner that commenced the proceeding in Myers v. Fresno 26 County Jail, No. 1:20-cv-00381-AWI-EPG, along with copies various orders from this court and 27 the Fresno County Superior Court. (Doc. No. 12.) These letters and attachments do not affect the court’s conclusion that the instant petition should be dismissed without prejudice pursuant to 28 Younger v. Harris, 401 U.S. 37 (1971), and for failure to state cognizable federal habeas claims. VAIS LOVE TE OPAL SAR MUO, tu PI ee YY VI 1 Accordingly: 2 1. The findings and recommendation issued on May 13, 2020 (Doc. No. 9) are adopted; 3 2. The petition for writ of habeas corpus is dismissed without prejudice; 4 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 5 closing the case and then to close the case; and 6 4. The court declines to issue a certificate of appealability. 7 | ITIS SO ORDERED. si am 8 Li. wh F Dated: _ July 16, 2020 Aa oF 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28