(HC) Major v. Fisher ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 MATTHEW BENJAMIN MAJOR, CASE NO. 1:21-cv-00443-AWI-SKO (HC) 8 Petitioner, ORDER ADOPTING FINDINGS AND 9 v. RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS 10 WARDEN R. FISHER, CORPUS, DIRECTING CASE TO BE CLOSED, AND DECLINING TO ISSUE 11 Respondent. CERTIFICATE OF APPEALABILITY 12 (Doc. No. 6) 13 14 15 Petitioner Matthew Benjamin Major is a state prisoner proceeding in propria persona with 16 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 22, 2021, the 17 magistrate judge assigned to the case issued a findings and recommendation that recommended the 18 summarily dismiss of the petition. Doc. No. 6. This findings and recommendation was served 19 upon all parties and contained notice that any objections were to be filed within twenty-one days 20 from the date of service of that order. On April 6, 2021, Petitioner filed objections. Doc. No. 7. 21 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 22 de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 23 objections, the Court concludes that the magistrate judge’s findings and recommendation is 24 supported by the record and proper analysis. 25 In addition, the Court declines to issue a certificate of appealability. A state prisoner 26 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 27 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 28 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 1 appealability is 28 U.S.C. § 2253, which provides as follows: 2 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of 3 appeals for the circuit in which the proceeding is held. 4 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a 5 person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 6 (c) 7 (1) Unless a circuit justice or judge issues a certificate of appealability, an 8 appeal may not be taken to the court of appeals from— 9 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 10 court; or 11 (B) the final order in a proceeding under section 2255. 12 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 13 right. 14 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 15 16 If a court denies a petitioner’s petition, the court may only issue a certificate of 17 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 18 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 19 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 20 been resolved in a different manner or that the issues presented were ‘adequate to deserve 21 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 22 Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 23 In the present case, the Court finds that Petitioner has not made the required substantial 24 showing of the denial of a constitutional right to justify the issuance of a certificate of 25 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 26 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 27 proceed further. Thus, the Court will decline to issue a certificate of appealability. 28 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendation (Doc. No. 6), entered on March 22, 2021, is 4 ADOPTED in full; 5 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 6 3. The Clerk of Court is directed to ENTER judgment and CLOSE the case; 7 4. The Court DECLINES to issue a certificate of appealability; and 8 5. This order terminates the action in its entirety. 9 10 IT IS SO ORDERED. 11 |Dated: __April 14, 2021 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28