(HC) Brooks v. People of the State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENARD BROOKS, JR., No. 1:21-cv-01443-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 ASSIGN DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND THEN 15 TO CLOSE CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 MARTIN BIDER, 17 (Doc. No. 8) Respondent. 18 19 20 Petitioner Renard Brooks, Jr., is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On October 1, 2021, the assigned magistrate judge issued findings and recommendations 24 to dismiss the petition as an unauthorized second or successive petition. (Doc. No. 8.) Those 25 findings and recommendations were served upon all parties and contained notice that any 26 objections thereto were to be filed within thirty (30) days after service. On October 12, 2021, 27 petitioner filed objections to the findings and recommendations. (Doc. No. 9.) 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 3 objections, the court concludes that the magistrate judge’s findings and recommendations are 4 supported by the record and proper analysis. Petitioner’s objections present no grounds for 5 questioning the magistrate judge’s analysis. Among other things, the findings and 6 recommendations correctly point out that it is the Ninth Circuit, not this court, that must evaluate 7 whether a second or successive petition meets the requirements of 28 U.S.C. § 2244(b)(2)(A)–(B) 8 and be authorized. The Ninth Circuit has not done so in this case. 9 In addition, the court declines to issue a certificate of appealability. A state prisoner 10 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 11 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 12 U.S. 322, 335-336 (2003); see also 28 U.S.C. § 2253. If a court denies a petitioner’s petition, the 13 court may only issue a certificate of appealability when a petitioner makes a substantial showing 14 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, 15 the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, 16 agree that) the petition should have been resolved in a different manner or that the issues 17 presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 18 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 19 In the present case, the court finds that petitioner has not made the required substantial 20 showing of the denial of a constitutional right to justify the issuance of a certificate of 21 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 22 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 23 proceed further. Thus, the court declines to issue a certificate of appealability. 24 Accordingly, 25 1. The findings and recommendations issued on October 1, 2021, (Doc. No. 8), are 26 adopted in full; 27 2. The pending petition for writ of habeas corpus is dismissed; 28 ///// 1 3. 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 close the case; and 3 4. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ October 19, 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