(HC) Patrick Piceno v. Anglea ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK PICENO, No. 1:20-cv-01154-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS v. CORPUS, DIRECTING THE CLERK OF 14 COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 15 APPEALABILITY H.B. ANGLEA, Warden, 16 Respondent. 17 18 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises a single ground challenging an 20 “underground” prison regulation prohibiting inmates from exercising in the prison yard at Sierra 21 Conservation Center without a shirt. (Doc. No. 1 at 5.) 22 On August 21, 2020, the assigned magistrate judge issued findings and recommendations 23 recommending that the petition be dismissed. (Doc. No. 4.) The magistrate judge recommended 24 dismissal after finding that petitioner’s complaint concerns a condition of confinement and is not 25 cognizable under 28 U.S.C. § 2254. (Id. at 2.) 26 The findings and recommendations were served upon all parties and contained notice that 27 any objections were to be filed within thirty days from the date of service of that order. To date, 28 no party has filed objections. WAS 4.66 VV VELMA VRP GO PND tie AY ee 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 3 | magistrate judge’s findings and recommendations are supported by the record and proper 4 | analysis. 5 In addition, the court declines to issue a certificate of appealability. A state prisoner 6 | seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 7 | his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 8 || v. Cockrell, 537 U.S. 322, 335-336 (2003). If a court denies a petitioner’s petition, the court may 9 | only issue a certificate of appealability when a petitioner makes a substantial showing of the 10 | denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 11 | petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 12 | that) the petition should have been resolved in a different manner or that the issues presented 13 || were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 14 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 15 In the present case, the court finds that petitioner has not made the required substantial 16 | showing of the denial of a constitutional right to justify the issuance of a certificate of 17 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 18 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 19 | proceed further. Thus, the court DECLINES to issue a certificate of appealability. 20 Accordingly, the court orders as follows: 21 1. The Findings and Recommendations, filed August 21, 2020 (Doc. No. 4), are 22 | ADOPTED IN FULL; 23 2. The petition for writ of habeas corpus is DISMISSED; 24 3. The clerk of court is DIRECTED to close this case; and 25 4. The court DECLINES to issue a certificate of appealability. 26 | IT IS SO ORDERED. me □ 27 Li fa £5 Dated: _ October 7, 2020 eee Te — 28 UNITED STATES DISTRICT JUDGE