(HC) Major v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW B. MAJOR, No. 1:21-cv-00166-NONE-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 UNKNOWN, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. No. 12) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 purportedly brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On April 30, 2021, the magistrate judge issued findings and recommendations 22 recommending that the petition for writ of habeas corpus be dismissed without prejudice. (Doc. 23 No. 12.) First, petitioner alleges that he has been housed in the security housing unit for refusing 24 to submit to COVID-19 testing due to his beliefs as a Jehovah’s Witness. (Doc. No. 1 at 2.) The 25 magistrate judge found that because this allegation concerns the conditions of petitioner’s 26 ///// 27 ///// 28 ///// 1 confinement, federal habeas relief is not available to him with respect to this claim.1 (Doc. No. 2 12 at 2–3.) Second, petitioner challenges the California Department of Corrections and 3 Rehabilitation’s calculation of his custody credits (Doc. No. 1 at 1–2), and further indicates that 4 he filed a petition for writ of habeas corpus in the state superior court (Doc. No. 9 at 1). Because 5 petitioner has not yet presented his claim in this regard to the California Supreme Court, however, 6 the magistrate judge found that his miscalculation of credits claim is not yet exhausted and should 7 be dismissed at this time. (Doc. No. 12 at 3–4.) 8 The findings and recommendations were served petitioner and contained notice that any 9 objections thereto were to be filed within thirty (30) days of the date of service of the findings and 10 recommendations. To date, no objections have been filed, and the time for doing so has passed. 11 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 12 de novo review of the case. Having carefully reviewed the entire file, the court holds the findings 13 and recommendations to be supported by the record and proper analysis. 14 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 15 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 16 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 17 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. 18 § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 19 whether (or, for that matter, agree that) the petition should have been resolved in a different 20 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 21 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 22 880, 893 & n.4 (1983)). 23 In the present case, the court finds that reasonable jurists would not find the court’s 24 determination that the petition should be dismissed debatable or wrong, or that petitioner should 25 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 26 1 The magistrate judge did not find it appropriate to construe the habeas petition as a § 1983 27 complaint because petitioner does not name any respondent in this matter. (Doc. No. 12 at 3 (“This conclusion, however, does not preclude Petitioner from pursuing his claims in a properly 28 filed civil action brought pursuant to 42 U.S.C. § 1983.”).) 1 Accordingly, 2 1. The findings and recommendations issued on April 30, 2021, (Doc. No. 12), are 3 adopted in full; 4 2. The petition for writ of habeas corpus is dismissed without prejudice; 5 3. The Clerk of the Court is directed to assign a district judge to this case for the purpose 6 of closing the case and then to close the case; and 7 4. The court declines to issue a certificate of appealability. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ July 15, 2021 wea rE 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28