(HC) Bell v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAJUAN BELL, No. 1:21-cv-00291-NONE-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 MARCUS POLLARD, HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO 15 Respondent. ASSIGN A DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE A 16 CERTIFICATE OF APPEALABILITY 17 (Doc. Nos. 8, 10) 18 19 Petitioner JaJuan Bell is a state prisoner proceeding pro se with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 Respondent moved to dismiss the petition on the ground that the criminal conviction 23 which petitioner was challenging was the subject of an ongoing appeal being pursued by 24 petitioner in the state courts. (Doc. No. 8.) On June 25, 2021, the assigned magistrate judge 25 issued findings and recommendations recommending that the court abstain from exercising 26 jurisdiction over this action pursuant to Younger v. Harris, 401 U.S. 37 (1971), that respondent’s 27 motion to dismiss be granted and that the pending petition be dismissed without prejudice. (Doc. 28 No. 10.) The findings and recommendations were served on petitioner and contained notice that 1 | any objections were to be filed within thirty (30). To date, no objections have been filed, and the 2 | time for doing so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 4 | de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 5 | and recommendation 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 | acertificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 8 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 9 | allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 10 | § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 11 | whether (or, for that matter, agree that) the petition should have been resolved in a different 12 || manner or that the issues presented were ‘adequate to deserve encouragement to proceed 13 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 US. 14 | 880, 893 & n.4 (1983)). 15 In the present case, the court finds that reasonable jurists would not find the court’s 16 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 17 | be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 18 Accordingly: 19 1. The findings and recommendation issued on June 25, 2021 (Doc. No. 10) are adopted 20 in full; 21 2. Respondent’s motion to dismiss (Doc. No. 8) is granted; 22 3. The petition for writ of habeas corpus is dismissed without prejudice; 23 4. The Clerk of the Court is directed to assign a district judge to this case for the purpose 24 of closing the case and then to close the case; and 25 5. The court declines to issue a certificate of appealability. 26 | IT IS SO ORDERED. 27 /)} A fF; Dated: _ October 11, 2021 wee! ae 28 UNITED STATES DISTRICT JUDGE