(HC) Gao v. Warden, California Correctional Institution ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ZHANG GAO, No. 1:19-cv-01066-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 WARDEN, CALIFORNIA PETITION FOR WRIT OF HABEAS CORRECTIONAL INSTITUTE, CORPUS, AND DECLINING TO ISSUE A 15 CERTIFICATE OF APPEALABILITY Respondent. 16 (Doc. No. 15) 17 18 19 Petitioner Jason Zhang Gao is a parolee proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 13.) The matter was 21 referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On October 23, 2019, the assigned magistrate judge issued findings and recommendations 23 recommending that the pending petition be denied for failure to state a claim and for failure to 24 comply with a court order directing him to file a second amended petition addressing the 25 previously not deficiencies in his previously filed petitions. (Doc. No. 15.) The findings and 26 recommendations were served on petitioner and contained notice that any objections thereto were 27 ///// 28 ///// 1 to be filed within ten (10) days after service. (Id.) To date, no objections to those findings and 2 recommendations have been filed by petitioner.1 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including petitioner’s objections, the court finds the findings and recommendations to be 6 supported by the record and proper analysis. 7 Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to 8 appeal a district court’s denial of his petition, and an appeal is only allowed in certain 9 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal 10 rules governing habeas cases brought by state prisoners require a district court issuing an order 11 denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules 12 Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the 13 applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 14 § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, id. at (c)(3). 15 “Where a district court has rejected the constitutional claims on the merits, the showing required 16 to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists 17 would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 18 v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing. 19 Accordingly, a certificate of appealability will not be issued. 20 For the reasons set forth above, 21 1. The October 23, 2019 findings and recommendations (Doc. No. 15) are adopted in 22 full; 23 2. The petition for writ of habeas corpus (Doc. No. 13) is denied; 24 ///// 25 1 Five days after the pending findings and recommendations were issued and served on petitioner at his P.O. Box at California Correctional Institution, petitioner filed a notice of change of address 26 as a result of him being granted parole . (See Doc. No. 16.) Thereafter, the court reserved 27 petitioner with the pending findings and recommendations and anther order at his updated address of record. Neither the reserved findings and recommendations nor the court’s subsequent order 28 have been returned to the court as undeliverable. 1 3. The Clerk of the Court is directed to close this case; and 2 4. The court declines to issue a certificate of appealability. 3 | IT IS SO ORDERED. = Dated: _ March 30, 2020 Ya AL oye 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28