(HC) Brown v. North Kern State Prison Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENYON D. BROWN, No. 1:20-cv-01043-NONE-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 NORTH KERN STATE PRISON TO ASSIGN DISTRICT JUDGE AND CLOSE WARDEN, CASE, AND DECLINING TO ISSUE A 15 CERTIFICATE OF APPEALABILITY Respondent. 16 (Doc. No. 7) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Petitioner raises two grounds for federal habeas relief. (Doc. No. 20 1.) First, he argues that, due to dangerous prison conditions arising from the coronavirus, he 21 should be paroled on the earlier of two parole dates related to concurrent sentences he is now 22 serving. (Id. at 3.) Second, petitioner argues that his projected release date is not consistent with 23 his plea agreement and that there was error in the enhancement applied to his sentence. (Id. at 4.) 24 On September 8, 2020, the assigned magistrate judge issued findings and recommendation 25 recommending that the court abstain from exercising jurisdiction and that the petition be 26 dismissed without prejudice. (Doc. No. 7.) The magistrate judge based the recommendation on 27 the fact that petitioner has an appeal pending before the California Court of Appeal concerning 28 one of his underlying convictions at issue in this petition. (Id. at 3.) The magistrate judge also 1 found that petitioner has not made a showing of extraordinary circumstances that would render 2 abstention under Younger v. Harris, 401 U.S. 37 (1971), inappropriate. (Id.) Additionally, when 3 petitioner was served with the findings and recommendations, he was also provided with a copy 4 of the form used for civil rights complaint by prisoners. (Id., Attm. 1.) 5 The findings and recommendation were served on petitioner and contained notice that any 6 objections were to be filed within thirty (30) days of the date of service of the findings and 7 recommendation. Petitioner timely filed objections. (Doc. Nos. 8–11.) The objections cite as 8 reasons for this federal court to intervene both coronavirus and what petitioner contends is an 9 unconstitutional allocation of good conduct credits by state officials based on work assignments. 10 (Id.) The court observes that petitioner does not allege any irreparable injury related to either 11 circumstance. 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 13 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 14 objections, the court holds the findings and recommendation to be supported by the record and 15 proper analysis. 16 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 17 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 18 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 19 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 20 § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 21 whether (or, for that matter, agree that) the petition should have been resolved in a different 22 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 23 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 24 880, 893 & n.4 (1983)). 25 In the present case, the court finds that reasonable jurists would not find the court’s 26 determination that the petition should be dismissed debatable or wrong, or that petitioner should 27 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 28 ///// UV ETA NSU PI I eT OY VIG 1 Accordingly: 2 1. The findings and recommendation issued on September 8, 2020 (Doc. No. 7) are 3 adopted; 4 2. The petition for writ of habeas corpus is dismissed without prejudice; 5 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 6 closing the case and then to close the case; and 7 4. The court declines to issue a certificate of appealability. 8 | IT IS ORDERED. a 9 Li. wh F Dated: _ October 7, 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