(HC) Petersen v. Engleman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KYLE EVAN PETERSEN, No. 1:20-cv-00311-NONE-SKO (HC) 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 12 MOTION TO CONSTRUE, DISMISSING v. PETITION FOR WRIT OF HABEAS 13 CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 14 J. ENGLEMAN, Acting Warden, (Doc. Nos. 5 & 6) 15 Respondent. 16 17 18 Petitioner Kyle Peterson is a federal prisoner1 proceeding in propria persona with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges his 2007 20 conviction in state court for possession of child pornography. On March 9, 2020, the assigned 21 magistrate judge issued findings and recommendations recommending that the pending petition to 22 be dismissed for lack of jurisdiction. (Doc. 5.) The findings and recommendations were served 23 upon all parties and contained notice that any objections were to be filed within twenty-one (21) 24 days from the date of service of that order. 25 On March 16, 2020, petitioner filed a motion requesting that the court construe his 26 petition as an attack on his federal sentence, which he argues was enhanced because of his prior 27 28 1 Petitioner was sentenced in United States v. Petersen, Case No. 1:17-cr-00255-NONE-SKO. 1 state conviction. (Doc. No. 6.) On March 23, 2020, petitioner filed a motion for a sixty (60) day 2 extension of time to file objections to the pending findings and recommendations. (Doc. No. 8.) 3 The requested extension was granted on March 26, 2020. (Doc. No. 9.) The additional time to 4 file objections has now passed, and petitioner has still not filed objections. 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, the court concludes that the 7 findings and recommendations are supported by the record and proper analysis. As the magistrate 8 judge correctly determined, petitioner has failed to demonstrate that he is “in custody” for 9 purposes of challenging his 2007 state conviction, since he completed serving the sentence 10 imposed with respect to that conviction long ago and the time to challenge that conviction has 11 passed. 12 The pending petition is not saved by petitioner’s motion to construe it as one challenging 13 the federal sentence he is currently serving on the theory that his federal sentence was enhanced 14 by his earlier state conviction. (See Doc. No. 6.) As discussed in the findings and 15 recommendations, petitioner fails to meet either exception to the general rule that he may not 16 collaterally attack the earlier sentence imposed by a state court that was later relied upon to 17 enhance his current federal sentence. (See Doc. No. 5 at 2–3 (discussing Lackawanna County 18 Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001))). 19 The court further declines to issue a certificate of appealability. A prisoner seeking a writ 20 of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and 21 an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 22 U.S. 322, 335-336 (2003). 23 If a court denies a petitioner’s petition, the court may only issue a certificate of 24 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 25 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 26 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 27 been resolved in a different manner or that the issues presented were ‘adequate to deserve 28 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting wOASe 4 OY VEY EAR SINAN MVOC I VO ee OY VMI 1 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 2 In the present case, the court finds that petitioner has not made the required substantial 3 | showing of the denial of a constitutional right to justify the issuance of a certificate of 4 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 5 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 6 | proceed further. Thus, the court DECLINES to issue a certificate of appealability. 7 Accordingly, the court orders as follows: 8 1. The findings and recommendations, filed March 9, 2020 (Doc. No. 5), are 9 | ADOPTED IN FULL; 10 2. Petitioner’s motion to construe (Doc. No. 6) is DENIED; 11 3. The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; 12 4. The Clerk of Court is directed to assign a district judge to this case for the purpose 13 | of closing the case and then to ENTER JUDGMENT AND CLOSE THE CASE; and, 14 5. The Court DECLINES to issue a certificate of appealability. 15 | IT IS SO ORDERED. si □ | Dated: _ August 19, 2020 Yel A Low 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28