(HC) Smith v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, No. 1:21-cv-01589-JLT-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE 14 KEN CLARK, CERTIFICATE OF APPEALABILITY 15 Respondent. 16 (Doc. 8) 17 18 Lawrence Christopher Smith is a state prisoner proceeding pro se with a petition for writ 19 of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 19, 2021, the magistrate judge issued findings and recommendations that 22 the petition for writ of habeas corpus be dismissed for failure to state a cognizable federal habeas 23 claim. (Doc. 8.) Petitioner filed timely objections. (Doc. 12.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 26 objections, the court concludes that the findings and recommendation are supported by the record 27 and proper analysis. 28 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 1 | acertificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 2 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 3 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 4 | § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 5 | whether (or, for that matter, agree that) the petition should have been resolved in a different 6 | manner or that the issues presented were ‘adequate to deserve encouragement to proceed 7 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 8 | 880, 893 & n.4 (1983)). 9 In the present case, the Court finds that reasonable jurists would not find the Court’s 10 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 11 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 12 | Accordingly, 13 1. The findings and recommendations issued on November 19, 2021 (Doc. 8) are 14 adopted in full. 15 2. The petition for writ of habeas corpus is dismissed. 16 3. The Clerk of Court is directed to close the case; and 17 4. The Court declines to issue a certificate of appealability. 18 19 IT IS SO ORDERED. 29 | Dated: _February 15, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28