(HC) Nelson v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL DEWITT NELSON, No. 1:20-cv-01769-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS § 2241 13 v. PETITION 14 A. CIOLLI, Warden, (Doc. No. 5) 15 Respondent. 16 17 Petitioner Cecil D. Nelson is a state prisoner proceeding in propria persona in this 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302, the instant federal habeas petition was referred to a United 20 States Magistrate Judge. On December 18, 2020, the assigned magistrate judge issued findings 21 and recommendations, recommending that the petition be dismissed as duplicative and for lack of 22 jurisdiction. (Doc. No. 5.) Those findings and recommendations were properly served on all 23 parties, but no objections have been filed. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 25 de novo review of the case. The court concludes that the pending findings and recommendations 26 are supported by the record and proper analysis and will adopt them. 27 In addition, the court declines to issue a certificate of appealability. A petitioner seeking a 28 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 1 | and an appeal is only allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335— 2 | 36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of appealability only if “reasonable 3 || jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 4 | ina different manner or that the issues presented were ‘adequate to deserve encouragement to 5 || proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 6 | U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not 7 | find the court’s determination that the petition should be dismissed debatable or wrong, or that 8 | petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate 9 | of appealability. 10 For the foregoing reasons, the court ORDERS as follows: 11 1. The findings and recommendations issued on December 18, 2020 (Doc. No. 5) are 12 ADOPTED in full; 13 2. The petition for writ of habeas corpus is DISMISSED; 14 3. The court DECLINES to issue a certificate of appealability; and 15 4. The clerk of court is DIRECTED to assign a district judge to this case for the 16 purpose of closing the case and then to enter judgment and close the case. 17 | IT IS SO ORDERED. sass - 'S | Dated: _February 12, 2021 Yi A Dra 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28