(HC) Odell v. K. Kiebler ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 TRAVIS ODELL, CASE NO. 1:21-cv-01508-AWI-HBK (HC) 8 Petitioner, ORDER ADOPTING FINDINGS AND 9 v. RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS 10 WARDEN K. KIEBLER, CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND 11 Respondent. CLOSE CASE 12 (Doc. No. 10) 13 14 15 Petitioner Travis Odell is a state prisoner proceeding in propria persona with a petition for 16 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. On November 1, 2021, the 17 magistrate judge assigned to the case issued findings and recommendations to dismiss the petition. 18 Doc. No. 10. These findings and recommendations were served on all parties and contained notice 19 that any objections were to be filed within fourteen days from the date of service of that order. To 20 date, no objections have been filed. 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 22 de novo review of this case. Having carefully reviewed the entire file, the Court concludes that 23 the findings and recommendations are supported by the record and by proper analysis. 24 In addition, the Court declines to issue a certificate of appealability. A state prisoner 25 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 26 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 27 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 28 appealability provides as follows: 1 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test the 3 validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the 4 validity of such person’s detention pending removal proceedings. 5 (c) 6 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 7 (A) the final order in a habeas corpus proceeding in which the 8 detention complained of arises out of process issued by a State court; or 9 (B) the final order in a proceeding under section 2255. 10 (2) A certificate of appealability may issue under paragraph (1) only if the 11 applicant has made a substantial showing of the denial of a constitutional right. 12 (3) The certificate of appealability under paragraph (1) shall indicate which 13 specific issue or issues satisfy the showing required by paragraph (2). 14 28 U.S.C. § 2253. 15 If a court denies a petitioner’s petition, the court may only issue a certificate of 16 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 17 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 18 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 19 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 20 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 21 880, 893 & n.4 (1983)). 22 In this case, the Court finds that Petitioner has not made the required substantial showing 23 of the denial of a constitutional right to justify the issuance of a certificate of appealability. 24 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to 25 federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 26 Thus, the Court will decline to issue a certificate of appealability. 27 /// 28 /// 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations (Doc. No. 10) that were issued on November 1, 4 2021, are ADOPTED in full; 5 2. Plaintiff’s petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 6 3. The Clerk of Court shall ENTER judgment and CLOSE the file; and 7 4. The Court DECLINES to issue a certificate of appealability. 8 9 ITIS SO ORDERED. 19 | Dated: _ November 30, 2021 ip hla SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28