(HC) Joseph v. Montgomery ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEON L. JOSEPH, Case No. 1:21-cv-01055-NONE-HBK 12 Petitioner, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS 14 WARREN L. MONTGOMERY, CORPUS WARDEN, 15 (Doc. Nos. 10, 14 15) Respondent. 16 17 Petitioner Deon L. Joseph is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 8, 2021, the assigned magistrate judge issued findings and recommendations 21 recommending that respondent’s motion to dismiss (Doc. No. 10) be granted, that petitioner’s 22 motion to stay (Doc. No. 14) be denied, and that this case be dismissed. (Doc. No. 15.) The 23 findings and recommendations were served on petitioner at his address of record and contained 24 notice that any objections thereto were to be filed within fourteen (14) days of service. (Id. at 5.) 25 On October 21, 2021, Petitioner filed a response to the findings and recommendations in which 26 he stated that he “agrees to dismissal of petition.” (Doc. No. 16.) 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, the court concludes that the 1 | findings and recommendations are supported by the record and by proper analysis. 2 Having determined that petitioner is not entitled to habeas relief, the court now turns to 3 | whether a certificate of appealability should issue. The federal rules governing habeas cases 4 | brought by state prisoners require a district court issuing an order denying a habeas petition to 5 | either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 6 | 11(a). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an 7 | appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 8 | (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 9 | with a certificate of appealability). A judge shall grant a certificate of appealability “only if the 10 | applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 11 | § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, 28 U.S.C. 12 | § 2253(c)(3). In the present case, the court finds that reasonable jurists would not find the court’s 13 | rejection of petitioner’s claims to be debatable or conclude that the petition should proceed 14 | further. 15 Accordingly: 16 1. The findings and recommendations issued on October 8, 2021 (Doc. No. 15) are 17 adopted in full; 18 2. Respondent’s motion to dismiss (Doc. No. 10) is granted; 19 3. Petitioner’s motion to stay (Doc. No. 14) is denied; 20 4. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 5. The court declines to issue a certificate of appealability; and 22 6. 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 25, 2021 aL Al 7 ye 26 UNITED STATES DISTRICT JUDGE 27 28