(HC) Murphy v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONRELL D. MURPHY, No. 1:20-cv-01300-DAD-SAB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 RALPH DIAZ, PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (Doc. No. 21) 16 17 Petitioner Monrell D. Murphy is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 19, 2021, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition for federal habeas relief, in which petitioner asserts that 22 his due process rights were violated when he was denied the right to call a certain witness at his 23 prison disciplinary hearing (Doc. No. 1), be denied on the merits. (Doc. No. 21.) Specifically, 24 the magistrate judge found that “the state court’s denial of relief was not contrary to, or an 25 unreasonable application of, clearly established federal law, nor was it based on an unreasonable 26 determination of fact.” (Id. at 9.) Those findings and recommendations were served on all parties 27 and contained notice that any objections thereto were to be filed within thirty (30) days from the 28 ///// 1 date of service. (Id. at 9–10.) No objections have been filed and the time in which to do so has 2 now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and proper analysis. 6 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 7 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 8 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 9 under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 10 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 11 court issue or deny a certificate of appealability when entering a final order adverse to a 12 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 13 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 14 issue a certificate of appealability when “the applicant has made a substantial showing of the 15 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 16 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 17 that) the petition should have been resolved in a different manner or that the issues presented 18 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 19 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Here, petitioner has not made 20 such a showing. Therefore, the court declines to issue a certificate of appealability. 21 Accordingly, 22 1. The findings and recommendations issued on May 19, 2021 (Doc. No. 21) are 23 adopted in full; 24 2. This petition for writ of habeas corpus (Doc. No. 1) is denied; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. The court declines to issue a certificate of appealability; and 2 4. The Clerk of the Court is directed to close this case. 3 | IT IS SO ORDERED. a 7. | Dated: _ July 26, 2021 VL AL oye 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28