(HC) Norman v. Robertson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL NORMAN, No. 1:20-cv-00455-DAD-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING THE PETITION FOR WRIT OF 14 JAMES ROBERTSON, HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (Doc. Nos. 1, 10, 14) 17 18 19 Petitioner Daniel Norman is a state prisoner proceeding pro se with a petition for writ of 20 habeas corpus. The matter was referred to a United States Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On December 5, 2018, the assigned magistrate judge issued findings and 23 recommendations, recommending that: (1) respondent James Robertson’s motion to dismiss the 24 petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases (Doc. No. 10) be granted; 25 (2) the pending habeas corpus petition be dismissed; and (3) a certificate of appealability not 26 issue. (Doc. No. 14.) Specifically, the magistrate judge found that the claim petitioner is 27 asserting in his petition—that a prison disciplinary action violated his due process rights (Doc. 28 No. 1 at 4)—was not cognizable on federal habeas review under the circumstances of this case 1 where the granting of the requested relief would not lead to petitioner’s speedier release from 2 custody. (Id. at 3.) The findings and recommendations were served on petitioner and contained 3 notice that any objections were to be filed within twenty-one (21) days of the date of service. (Id. 4 at 4.) To date, petitioner has filed no objections to the findings and recommendations, and the 5 time for doing so has now passed. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 7 conducted a de novo review of the case. Having carefully reviewed the entire file, the 8 undersigned concludes that the findings and recommendation are supported by the record and 9 proper analysis. 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 prisoner seeking a writ of habeas corpus has no 12 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 13 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 14 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 15 court issue or deny a certificate of appealability when entering a final order adverse to a 16 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 17 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 18 issue a certificate of appealability when “the applicant has made a substantial showing of the 19 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 20 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 21 that) the petition should have been resolved in a different manner or that the issues presented 22 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 23 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made 24 such a showing. Therefore, the court declines to issue a certificate of appealability. 25 For the reasons set forth above: 26 1. The findings and recommendations issued on August 7, 2020 (Doc. No. 14) are 27 adopted in full; 28 2. Respondent’s motion to dismiss (Doc. No. 10) is granted; wOAOe 4.2 UVES PAEE MVUOCT 1 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 2 4. The court declines to issue a certificate of appealability; and 3 5. The Clerk of Court is directed to close the case. 4 | IT IS ORDERED. a 5 Li. wh F Dated: _ September 24, 2020 Sea 1" S098 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28