(HC) Ortega v. Kings County Jail ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ALFREDO ORTEGA, No. 1:21-cv-00665-NONE-EPG-HC 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 13 KINGS COUNTY JAIL, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 14 Respondent. CERTIFICATE OF APPEALABILITY 15 (Doc. No. 4) 16 17 Petitioner Alfredo Ortega is proceeding pro se with a petition for writ of habeas corpus. 18 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 19 § 636(b)(1)(B) and Local Rule 302. 20 On June 22, 2021, the assigned magistrate judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be dismissed without prejudice because 22 it appears that petitioner has presented his claims to the wrong court. (Doc. No. 4.) The findings 23 and recommendations were served petitioner and contained notice that any objections were to be 24 filed within thirty (30) days of the date of service of the findings and recommendations. To date, 25 no objections have been filed, and the time for doing so has passed.1 26 27 1 On July 2, 2021, the findings and recommendations were returned as undeliverable with the notation of “inmate not here.” Absent notice of a party’s change of address, service of documents 28 at the prior address of the party is fully effective. Local Rule 182(f). 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court holds the findings 3 | and recommendation to be supported by the record and proper analysis. 4 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 5 | acertificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 6 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 7 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 8 | § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 9 | whether (or, for that matter, agree that) the petition should have been resolved in a different 10 | manner or that the issues presented were ‘adequate to deserve encouragement to proceed 11 further.’” Slack vy. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 12 | 880, 893 & n.4 (1983)). 13 In the present case, the court finds that reasonable jurists would not find the court’s 14 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 15 | be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on June 22, 2021 (Doc. No. 4) are adopted 18 in full; 19 2. The petition for writ of habeas corpus is dismissed without prejudice; 20 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 21 closing the case and then to close the case; and 22 4. The court declines to issue a certificate of appealability. 23 IT IS SO ORDERED. ~ ‘ai 25 Dated: _ October 6, 2021 wee Te oF UNITED STATES DISTRICT JUDGE 26 27 28