(HC) Hemingway v. Clark ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DAVID HEMINGWAY, No. 1:20-cv-01367-DAD-SKO (HC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING THE 14 KEN CLARK, Warden, PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A 15 Defendant. CERTIFICATE OF APPEALABILITY 16 17 (Doc. Nos. 1, 8) 18 19 20 Petitioner Michael David Hemingway is a state prisoner proceeding pro se with a petition 21 for writ of habeas corpus. The matter was referred to a United States Magistrate Judge pursuant 22 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On October 5, 2020, the assigned magistrate judge issued findings and recommendations, 24 recommending that: (1) the pending habeas corpus petition be dismissed; (2) a certificate of 25 appealability not issue; and (3) the Clerk of Court be directed to provide petitioner with a blank 26 civil rights complaint form. (Doc. No. 8.) Specifically, the magistrate judge found that the 27 claims petitioner is asserting in his petition—that the conditions of confinement impermissibly 28 exposes him to contracting the COVID-19 virus and that petitioner is “deprived of civilized 1 measures of life’s necessity[ies] in a pandemic” (Doc. No. 1 at 3–4)—were not cognizable in a 2 federal habeas action such as this one and that petitioner must instead seek relief with respect to 3 his claim challenging the conditions of his confinement by way of a civil rights action. (Id. at 2– 4 3.) The findings and recommendations were served on petitioner and contained notice that any 5 objections were to be filed within twenty-one (21) days of the date of service. (Id. at 3.) To date, 6 petitioner has filed no objections to the findings and recommendations, and the time for doing so 7 has now passed. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 9 conducted a de novo review of the case. Having carefully reviewed the entire file, the 10 undersigned concludes that the findings and recommendation are supported by the record and 11 proper analysis. 12 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 13 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 14 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 15 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 16 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 17 court issue or deny a certificate of appealability when entering a final order adverse to a 18 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 19 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 20 issue a certificate of appealability when “the applicant has made a substantial showing of the 21 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 22 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 23 that) the petition should have been resolved in a different manner or that the issues presented 24 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 25 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made 26 such a showing. Therefore, the court declines to issue a certificate of appealability. 27 ///// 28 ///// 1 For the reasons set forth above: 2 1. The findings and recommendations issued on October 5, 2020 (Doc. No. 8) are 3 adopted in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 5 3. The court declines to issue a certificate of appealability; 6 4. The Clerk of Court is directed to provide petitioner with a blank civil rights 7 complaint form; and 8 5. The Clerk of Court is directed to close the case. 9 | IT IS SO ORDERED. a '0 Dated: _ December 8, 2020 Lele A. ay 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28