(HC) Mackey v. Price ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ERNESTO MACKEY, No. 1:21-cv-00791-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS; DIRECTING THE CLERK OF 14 v. COURT TO SEND PETITIONER BLANK CIVIL RIGHTS FORM, ASSIGN DISTRICT 15 JUDGE, AND CLOSE CASE; AND DECLINING TO ISSUE CERTIFICATE OF 16 APPEALABILITY BRANDON PRICE, et al., 17 (Doc. No. 6) Respondents. 18 19 20 Petitioner David Ernesto Mackey is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was 22 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302. 24 On May 20, 2021, the assigned magistrate judge issued findings and recommendations 25 recommending that the petition be dismissed because conditions of confinement claims such as 26 those asserted in the pending petition are not cognizable claims for federal habeas relief. (Doc. 27 No. 6; see Doc. No. 1 at 4 (challenging his medication regimen and commitment status and 28 seeking release due to risks posed by COVID-19).) Those findings and recommendations were 1 served upon all parties and contained notice that any objections thereto were to be filed within 2 twenty-one (21) days after service. To date, no objections have been filed, and the deadline to do 3 so has expired. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 5 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 6 magistrate judge’s findings and recommendations are supported by the record and proper 7 analysis. 8 In addition, the court declines to issue a certificate of appealability. A state prisoner 9 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 10 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 11 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a petitioner’s petition, the court 12 may only issue a certificate of appealability when a petitioner makes a substantial showing of the 13 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 14 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 15 that) the petition should have been resolved in a different manner or that the issues presented 16 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 17 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 18 In the present case, the court finds that petitioner has not made the required substantial 19 showing of the denial of a constitutional right to justify the issuance of a certificate of 20 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 21 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 22 proceed further. Thus, the court declines to issue a certificate of appealability. 23 Accordingly, 24 1. The findings and recommendations issued on May 20, 2021, (Doc. No. 6), are 25 adopted in full; 26 2. The petition for writ of habeas corpus is dismissed; 27 3. The clerk of court is directed to provide petitioner with a blank civil rights 28 complaint form; 1 4. The Clerk of the Court is directed to assign a district judge to this case for the 2 purpose of closing the case and then to enter judgment and close the case; and 3 5. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ July 30, 2021 wee TE OO 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28