(HC) McVay v. Merlak ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MCVAY, No. 1:20-cv-00486-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 STEVEN “MIKE” MERLAK, MOTION FOR A TEMPORARY RESTRAINING ORDER AND DISMISSING 15 Respondent. PETITION 16 (Doc. Nos. 5, 7) 17 18 Petitioner Steven McKay is a federal prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 21 On April 15, 2020, petitioner filed a motion seeking a temporary restraining order to 22 prevent his transfer to a different prison because that transfer would place him in immediate 23 danger due to the possibility of contracting the COVID-19 virus at the alternate facility. (Doc. 24 No. 5.) While that motion was pending before this court, petitioner was released from prison to 25 home confinement in May 2020. (See Doc. No. 7 at 2, n.2.) 26 On June 3, 2020, the assigned magistrate judge issued findings and recommendations 27 recommending that petitioner’s motion for a temporary restraining order be denied and that his 28 petition for federal habeas relief be dismissed as having been rendered moot by his release to 1 home confinement. (Doc. No. 7.) The pending findings and recommendations were served by mail 2 on petitioner at his address of record on June 3, 2020 and contained notice that any objections 3 thereto were to be filed within fourteen (14) days of service. (Id. at 3.) On June 8, 2020, that 4 service copy of the findings and recommendations was returned to the court as “undeliverable, 5 not deliverable as addressed, unable to forward.” Petitioner was required by rule to file a notice 6 of change of address with this court by August 17, 2020, and he did not do so. No objections to 7 the pending findings and recommendations have been filed with the court, and the time for doing 8 so has expired. Petitioner has also failed to file a notice of change of address with the court as 9 required, or otherwise communicate with the court regarding this action following the issuance of 10 the pending findings and recommendations. 11 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 12 de novo review of this case. Having carefully reviewed the entire file, the court concludes that 13 the findings and recommendations are supported by the record and proper analysis. Accordingly, 14 petitioner’s motion for a temporary restraining order will be denied and the pending petition will 15 be dismissed as having been rendered moot. 16 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 17 writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 18 circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 19 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 20 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 21 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 22 issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 23 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 24 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 25 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 26 petition as having been rendered moot to be debatable or conclude that the petition should 27 proceed further. Thus, the court declines to issue a certificate of appealability. 28 ///// 4:6 VYTORIN OO PO Ie OY VV VI 1 Accordingly, 2 1. The findings and recommendations issued on June 3, 2020 (Doc. No. 7) are 3 adopted in full; 4 2. Petitioner’s motion for a temporary restraining order (Doc. No. 5) is denied; 5 3. The petition for writ of habeas corpus is dismissed as having been rendered moot; 6 4. The court declines to issue a certificate of appealability; and 7 5. The Clerk of the Court is directed to close this case. 8 | IT IS ORDERED. a 9 Li. wh F Dated: _ September 1, 2020 See 1" S98 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28