(HC) Solorio v. CHP Officers ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED P. SOLORIO, No. 1:20-cv-00828-DAD-JLT (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DAVID S. ROBINSON, HABEAS PETITION FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY 15 Respondent. WITH A COURT ORDER 16 (Doc. No. 10) 17 18 Petitioner Alfred P. Solorio is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 20 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 6, 2020, the assigned magistrate judge preliminarily screened the pending 22 petition, found that petitioner had failed to present any cognizable claims for federal habeas relief 23 or any facts in support of his claims, and granted him thirty (30) days to file an amended petition. 24 (Doc. No. 5.) Petitioner did not file an amended petition within the allotted time or otherwise 25 communicate with the court. 26 Accordingly, on August 18, 2020, the magistrate judge issued the pending findings and 27 recommendations, recommending that the petition be dismissed due to petitioner’s failure to obey 28 the court’s order directing him to file an amended petition and failure to prosecute this habeas 1 action. (Doc. No. 10.) The findings and recommendations were served upon petitioner and 2 contained notice that any objections thereto were to be filed within ten (10) days after service. 3 (Id. at 3.) To date, petitioner has not filed any objections and the time in which to do so has since 4 passed.1 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 pending findings and recommendations are supported by the record and proper analysis. 8 Having concluded that the pending petition must be dismissed, the court also declines to 9 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 10 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 11 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 12 only issue a certificate of appealability when a petitioner makes a substantial showing of the 13 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 14 relief on procedural grounds without reaching the underlying constitutional claims, the court 15 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 16 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 17 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 18 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 19 would not find the court’s determination that the pending petition must be dismissed to be 20 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 21 Accordingly, 22 1. The findings and recommendations issued on August 18, 2020 (Doc. No. 10) are 23 adopted in full; 24 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 25 ///// 26 27 1 Both the July 6, 2020 order and the August 18, 2020 findings and recommendations were served on petitioner by mail at his address of record, and neither were returned to the court as 28 undeliverable. wOoOe OCONEE VRP MVVUPTCII tt □□□ Veter VM VI 1 3. The court declines to issue a certificate of appealability; and 2 4. The Clerk of the Court is directed to close this case. 3 | IT IS SO ORDERED. a " 4 Li. wh F Dated: _ September 24, 2020 Sea 1" S098 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