(HC) Petersen v. Kern County District Attorney ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE PETERSEN, No. 1:19-cv-00975-NONE-JDP 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS PETITION 14 KERN COUNTY DISTRICT ATTORNEY, (Doc. Nos. 18, 32) 15 Respondent. 16 17 18 Petitioner Kyle Petersen, a federal prisoner1 proceeding pro se and without counsel, 19 petitioned for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging 20 his 2015 no contest plea in state court to possession of child pornography. (Doc. No. 1.) This 21 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 22 Local Rule 302. 23 On March 20, 2020, respondent moved for dismissal of the pending petition. (Doc. No. 24 18.) On June 5, 2020, the assigned magistrate judge issued findings and recommendations 25 recommending that respondent’s motion to dismiss be granted because the petition was untimely 26 filed under the applicable statute of limitation provided by the Antiterrorism and Effective Death 27 1 Petitioner was sentenced in United States v. Petersen, Case No. 1:17-cr-00255-NONE-SKO. 28 1 Penalty Act (“AEDPA”). (Doc. No. 32.) The findings and recommendations were served on 2 petitioner and contained notice that objections thereto were due within thirty (30) days of service. 3 (Id.) The time for filing objections has passed and petitioner has not filed any objections to the 4 pending findings and recommendations. 5 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 6 court has conducted a de novo review of this case. The magistrate judge concluded that the 7 petition was untimely. (Doc. No. 32.) Based on these findings, the magistrate judge 8 recommended that respondent’s motion to dismiss be granted. (Id.) Having carefully reviewed 9 the entire file, the court agrees and finds the findings and recommendations to be supported by the 10 record and proper analysis. 11 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 12 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 13 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 14 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 15 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 16 court issue or deny a certificate of appealability when entering a final order adverse to a 17 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 18 Cir. 1997). 19 If, as here, a court grants a motion to dismiss a petition for a writ of habeas corpus, the 20 court may only issue a certificate of appealability when “the applicant has made a substantial 21 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial 22 showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that 23 matter, agree that) the petition should have been resolved in a different manner or that the issues 24 presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 25 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 26 In the present case, the court concludes that petitioner has not made the required 27 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 28 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 4:40 VV YEOMAN OPENED MV VI 1 | entitled to federal habeas corpus relief because of the untimely filing of his petition to be wrong 2 | or debatable, and they would not conclude that petitioner is deserving of encouragement to 3 | proceed further. The court therefore declines to issue a certificate of appealability. 4 Accordingly: 5 1. The findings and recommendations issued on June 5, 2020 (Doc. No. 32) are 6 adopted in full; 7 2. Respondent’s motion to dismiss the petition for writ of habeas corpus (Doc. No. 8 18) as untimely is granted; 9 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed without prejudice; 10 4. The court declines to issue a certificate of appealability; and 11 5. The Clerk of Court is directed to assign a district judge to this case for the 12 purposes of closure and to close this case. 13 | IT IS SO ORDERED. si □ Dated: _ August 19, 2020 J aL Al 5 7 a 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28