(HC) Trammell v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS KENNETH TRAMMELL, No. 1:20-cv-01448-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS § 2254 13 v. PETITION 14 STATE OF CALIFORNIA, (Doc. Nos. 1, 6) 15 Respondent. 16 17 Petitioner Nicholas K. Trammell, a state prisoner proceeding in propria persona, has 18 petitioned this federal court for writ of habeas corpus pursuant to 28 U.S.C. § 2254, even though 19 his state petitions for writs of habeas corpus asserting the same claims are still pending in the 20 California Court of Appeal and California Supreme Court. (Doc. No. 1 at 5–6.) Pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas petition was referred to a 22 United States Magistrate Judge. 23 “A federal court may not grant habeas relief to a state prisoner unless the prisoner has first 24 exhausted his state court remedies.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). Because 25 petitioner has yet to exhaust his state court remedies, the assigned magistrate judge, on October 26 15, 2020, recommended that the instant federal habeas petition be dismissed for lack of 27 jurisdiction. (Doc. No. 6.) Petitioner has not objected to the magistrate judge’s findings and 28 recommendations, and the time to do so has passed. 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 | de novo review of the case. The court concludes that the pending findings and recommendations 3 || are supported by the record and proper analysis and will adopt the findings and recommendations. 4 In addition, the court declines to issue a certificate of appealability. A petitioner seeking a 5 | writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 6 | and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335— 7 | 36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of appealability only if “reasonable 8 | jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 9 | 1a different manner or that the issues presented were ‘adequate to deserve encouragement to 10 || proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 11 | US. 880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not 12 | find the court’s determination that the petition should be dismissed debatable or wrong, or that 13 | petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate 14 | of appealability. 15 Accordingly, the court orders as follows: 16 1. The findings and recommendations (Doc. No. 6), filed October 15, 2020, are 17 ADOPTED in full; 18 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 19 3. The court DECLINES to issue a certificate of appealability; and 20 4. The clerk of court is DIRECTED to assign a district judge to this case for the 21 purpose of closing the case and then to close the case. 22 | IT IS SO ORDERED. me □ Dated: _ February 2, 2021 a aL, A 5 anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28