(HC) Faulkner v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH L. FAULKNER, No. 1:20-cv-01748-NONE-HBK 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 M. POLLARD, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1, 6) 17 18 Petitioner Kenneth L. Faulkner is a state prisoner proceeding pro se with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 9, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that the petition be dismissed as an unauthorized successive petition. (Doc. No. 23 6.) The findings and recommendations were served on petitioner at his address of record and 24 contained notice that any objections thereto were to be filed within thirty (30) days of service. 25 (Id. at 4.) Petitioner filed two sets of objections to the pending findings and recommendations 26 and multiple “addendums.” (Doc. Nos. 11, 16, 17, 18, 19.) 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 1 | objections, the court concludes that the findings and recommendations are supported by the 2 | record and by proper analysis. 3 Having determined that petitioner is not entitled to habeas relief, the court now turns to 4 | whether a certificate of appealability should issue. The federal rules governing habeas cases 5 | brought by state prisoners require a district court issuing an order denying a habeas petition to 6 | either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 7 | 11(a). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an 8 || appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 9 | (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 10 | with □ certificate of appealability). A judge shall grant a certificate of appealability “only if the 11 | applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 12 | § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, 28 U.S.C. 13 | § 2253(c)(3). In the present case, the court finds that reasonable jurists would not find the court’s 14 | rejection of petitioner’s claims to be debatable or conclude that the petition should proceed 15 | further. Moreover, it appears that petitioner has now been released from confinement. Under 16 | these circumstances, the court declines to issue a certificate of appealability. 17 Accordingly: 18 1. The findings and recommendations issued on March 9, 2021 (Doc. No. 6) are 19 adopted in full; 20 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 3. The court declines to issue a certificate of appealability; and 22 4. The Clerk of the Court is directed to assign a district judge to this case for the 23 purpose of closing the case and then to close the case. 24 | IT IS SO ORDERED. me □ Dated: _ October 13, 2021 J aL Al 7 ye 26 UNITED STATES DISTRICT JUDGE 27 28