(HC) Wilhelm v. People of the 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 STEVE WILHELM, No. 1:20-cv-01659-NONE-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. § 2254 PETITION 14 PEOPLE OF THE STATE OF (Doc. Nos. 1, 8) CALIFORNIA, 15 Respondent. 16 17 Petitioner Steve Wilhelm, a state prisoner, is bringing this petition for writ of habeas 18 corpus pro se pursuant to 28 U.S.C. § 2254 challenging the California Board of Parole Hearings 19 decision to deny him parole. (Doc. No. 1 ¶ 12.) Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 20 Rule 302, the instant federal habeas petition was referred to a United States Magistrate Judge. 21 Following Rule 4 of the Rules Governing § 2254 Cases, the assigned magistrate judge screened 22 the instant habeas petition and found that petitioner’s claim challenging the denial of his release 23 on parole to not fall within “the core of habeas corpus.” (Doc. No. 8 at 2–3) (citing Nettles v. 24 Grounds, 830 F.3d 922, 927 (9th Cir. 2016)). The magistrate judge further found that this § 2254 25 petition is not “amenable to conversion on its face” and recommended that the petition be 26 dismissed for lack of jurisdiction. (Id. at 3–4) (citing Nettles, 830 F.3d at 936). To date, 27 petitioner has not objected to the pending findings and recommendations and the time to do so 28 has passed. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 2 | conducted a de novo review of the case and concludes that the findings and recommendations are 3 || supported by the record and proper analysis and should be adopted. 4 The court must now turn to whether a certificate of appealability should be issued. A 5 | petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 6 | denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El y. 7 1 Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 8 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 9 | petition should have been resolved in a different manner or that the issues presented were 10 | ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 11 } (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 12 | court finds that reasonable jurists would not find the court’s determination that the petition should 13 | be dismissed to be debatable or wrong, or that petitioner should be allowed to proceed further. 14 | Therefore, the court declines to issue a certificate of appealability. 15 Accordingly: 16 1. The findings and recommendations issued on December 16, 2020 (Doc. No. 8) are 17 ADOPTED; 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 purpose 21 of closing the case and then close this case. 22 | IT IS SO ORDERED. me □ 3 Dated: _ March 15, 2021 al, Al 4 7 ae 24 UNITED STATES DISTRICT JUDGE 25 26 27 28