(HC) Newman v. Kings County Clerk's Office ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY L. NEWMAN, III, Case No. 1:20-cv-01251-NONE-HBK 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 KING’S COUNTY CLERK’S OFFICE, et CERTIFICATE OF APPEALABILITY, AND al., DIRECTING CLERK OF COURT TO 15 ASSIGN DISTRICT JUDGE AND CLOSE Respondents. CASE 16 (Doc. Nos. 1, 7) 17 18 Petitioner Jimmy L. Newman, III, is a current or former state prisoner proceeding pro se 19 and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 21 and Local Rule 302. 22 On November 17, 2020 and April 6, 2021, the court served two orders on petitioner at his 23 address of record, but both were returned to the court by the U.S. Postal Service as undeliverable 24 with a notation indicating that petitioner was not at that location. (See Doc. Nos. 4, 5.) On April 25 29, 2021, the assigned magistrate judge issued findings and recommendations recommending that 26 the pending petition be dismissed due to petitioner’s failure to prosecute, failure to state a 27 cognizable claim, and failure to exhaust. (Doc. No. 7.) The pending findings and 28 recommendations were served on petitioner at his address of record and contained notice that any 1 objections thereto were to be filed within thirty (30) days of service. (Id. at 6.) The findings and 2 recommendations were mailed to petitioner at his address of record on the date issued. However, 3 on May 6, 2021, the findings and recommendations were returned to the court by the U.S. Postal 4 Service as undeliverable with the same notation indicating that petitioner was not at that address.1 5 To date, petitioner has not filed a notice of change of address with this court as required nor has 6 he communicated with the court in any way. 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 8 de novo review of the case. Having carefully reviewed the entire file, the court adopts the 9 findings and recommendations insofar as they recommend dismissal due to petitioner’s failure to 10 prosecute this action. The court therefore finds it unnecessary to address the other grounds for 11 dismissal discussed in the findings and recommendations. 12 Having determined that petitioner is not entitled to habeas relief, the court now turns to 13 whether a certificate of appealability should issue. The federal rules governing habeas cases 14 brought by state prisoners require a district court issuing an order denying a habeas petition to 15 either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 16 11(a). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an 17 appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 18 (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 19 with a certificate of appealability). A judge shall grant a certificate of appealability “only if the 20 applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 21 § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, id. § 2253(c)(3). 22 In the present case, the court finds that reasonable jurists would not find the court’s rejection of 23 petitioner’s claims to be debatable or conclude that the petition should proceed further. Thus, the 24 court declines to issue a certificate of appealability. 25 ///// 26 27 1 According to his habeas petition filed on September 3, 2020, petitioner stated that he was then incarcerated at Kings County Jail with an expected release date of January 22, 2021. (Doc. No. 1 28 at 2.) 1 Accordingly: 2 1. The findings and recommendations issued on April 29, 2021, (Doc. No. 7), 3 | recommending that this petition be dismissed for failure to prosecute is adopted; 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; and 6 4. The Clerk of the Court is directed to assign a district judge to this case for the 7 | purpose of closing the case and then to close this case. 8 | IT IS SOORDERED. a " 9 ji je Ff; Dated: _ July 11, 2021 Aa oe 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28