(HC) Smith v. Koenig ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY PAUL SMITH, No. 1:20-cv-00780-NONE-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 KOENIG, HABEAS CORPUS, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. AND CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF 16 APPEALABILITY 17 (Doc. Nos. 9, 11) 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. On September 22, 2020, the assigned magistrate judge issued 21 findings and recommendation recommending that respondent’s motion to dismiss the petition as 22 untimely be granted. (Doc. No. 11.) The findings and recommendation were served on petitioner 23 and contained notice that any objections thereto were to be filed within thirty (30) days of the date 24 of service of the findings and recommendation. To date, no objections have been filed, and the 25 time for doing so has passed. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 27 de novo review of the case. Having carefully reviewed the entire file, the court holds the findings 28 and recommendation to be supported by the record and proper analysis. 1 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 2 | acertificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 3 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 4 | allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 5 || § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 6 | the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 7 | of reason would find it debatable whether the petition states a valid claim of the denial of a 8 | constitutional right and that jurists of reason would find it debatable whether the district court was 9 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 10 | procedural bar is present and the district court is correct to invoke it to dispose of the case, a 11 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 12 | that the petitioner should be allowed to proceed further.” Jd. 13 In the present case, the court finds that reasonable jurists would not find the court’s 14 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 15 | be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly: 17 1. The findings and recommendation issued on September 22, 2020 (Doc. No. 11) are 18 adopted; 19 2. Respondent’s motion to dismiss (Doc. No. 9) is granted; 20 3. The petition for writ of habeas corpus is dismissed; 21 4. The Clerk of Court is directed to assign a district judge to this case for the purpose of 22 closing the case and then to close the case; and 23 5. The court declines to issue a certificate of appealability. 24 | IT IS SO ORDERED. me □ 25 ft ff ja £3 Dated: _ November 13, 2020 eee Te — 26 UNITED STATES DISTRICT JUDGE 27 28