(HC) Thomas v. Koenig ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOSH D. THOMAS, No. 1:20-cv-00996-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. PETITIONER’S MOTION TO WITHDRAW AND TO DISMISS § 2254 PETITION 14 C. KOENIG, (Doc. Nos. 1, 17, 19) 15 Respondent. 16 17 A few months after petitioner Hosh D. Thomas filed the instant § 2254 petition seeking 18 federal habeas relief, he moved to withdraw his petition “[d]ue to recent changes in state law 19 affecting issues not presented” on the petition. (Doc. Nos. 1; 17 at 1.) While respondent has not 20 filed an answer in this case, respondent has filed a statement of non-opposition to petitioner’s 21 motion to withdraw his petition. (Doc. No. 18.) Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 22 Rule 302, this matter was referred to a United States Magistrate Judge. 23 On November 23, 2020, the assigned magistrate judge issued findings and 24 recommendations, recommending that petitioner’s motion to withdraw and to dismiss the pending 25 petition be granted. (Doc. No. 19.) No parties have objected thereto, and the time to do so has 26 passed. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 28 de novo review of the case. The court finds that the magistrate judge’s findings and 1 || recommendations are supported by the record and proper analysis and will adopt them. 2 The court also finds that petitioner is not entitled to a certificate of appealability. A 3 || petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 4 | denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 5 | Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 6 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 7 || petition should have been resolved in a different manner or that the issues presented were 8 | ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 9 | (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 10 | court finds that reasonable jurists would not find the court’s determination that the petition should 11 | be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 12 | Therefore, the court declines to issue a certificate of appealability. 13 In light of the foregoing, the court orders as follows: 14 1. The findings and recommendations (Doc. No. 19), filed November 23, 2020, are 15 ADOPTED in full; 16 2. Petitioner’s motion to withdraw (Doc. No. 17) is GRANTED; 17 3. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED without 18 prejudice; 19 4. The court DECLINES to issue a certificate of appealability; and 20 5. The Clerk of Court is DIRECTED to assign a district judge to this case for the 21 purpose of closing the case, then to enter judgment and close the case. 22 | IT IS SO ORDERED. me □ Dated: _ February 2, 2021 a aL, A a anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28