(HC) Dugger v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILIP G. DUGGER, No. 1:21-cv-01059-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 14 K. ALLISON, PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1, 11) 17 18 Petitioner Philip G. Dugger is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 20 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 8, 2021, the assigned magistrate judge screened petitioner’s petition and issued 22 findings and recommendations recommending that the pending petition for federal habeas relief 23 be summarily dismissed because petitioner has failed to state a cognizable claim for federal 24 habeas relief. (Doc. No. 11.) In particular, the findings and recommendations concluded that 25 petitioner does not challenge his conviction; rather, petitioner “challenges the decision of the 26 California Board of Parole Hearings (“Board”) finding him unsuitable for parole,” a claim which 27 is foreclosed by the Supreme Court’s decision in Swarthout v. Cooke, 562 U.S. 216 (2011). (Id. 28 at 2–3.) Accordingly, the magistrate judge recommended summarily dismissing the petition. (Id. 1 at 3.) The pending findings and recommendations were served on petitioner with notice that any 2 objections thereto were to be filed within thirty (30) days of service. (Id.) On July 19, 2021, 3 petitioner timely filed objections to the pending findings and recommendations. (Doc. No. 12.) 4 In his objections, petitioner does not meaningfully address or object to the findings and 5 recommendations. Rather, petitioner pontificates on the meaning of justice and encourages the 6 court to reconsider its jurisprudence and definition of due process. (Id. at 2–5.) Thus, petitioner’s 7 objections provide no basis upon which to reject the pending findings and recommendations. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 9 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 10 objections, the court concludes that the findings and recommendations are supported by the 11 record and by proper analysis. 12 Having determined that petitioner is not entitled to habeas relief, the court now turns to 13 whether a certificate of appealability should issue. “[A] state prisoner seeking a writ of habeas 14 corpus has no absolute entitlement to appeal a district court’s denial of his petition,” and an 15 appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 16 (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 17 with a certificate of appealability). Specifically, the federal rules governing habeas cases brought 18 by state prisoners require a district court issuing an order denying a habeas petition to either grant 19 or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a). A 20 judge shall grant a certificate of appealability “only if the applicant has made a substantial 21 showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must 22 indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). Here, petitioner has not made 23 such a showing. Accordingly, a certificate of appealability will not be issued. 24 Accordingly, 25 1. The findings and recommendations issued July 8, 2021 (Doc. No. 11) are adopted 26 in full; 27 ///// 28 ///// 1 2. The petition for writ of habeas corpus (Doc. No. 1) is summarily dismissed; 2 3. The court declines to issue a certificate of appealability; and 3 4. The Clerk of the Court is directed to close this case. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ August 3, 2021 wea rE 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