(HC)Derrick L. Johnson v. Barnes ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK JOHNSON, Case No. 1:21-cv-00177-AWI-SAB-HC 12 Petitioner, ORDER DENYING PETITIONER’S MOTIONS, ADOPTING FINDINGS AND 13 v. RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS 14 STEVEN D. BARNES, CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO 15 Respondent. ISSUE CERTIFICATE OF APPEALABILITY 16 (ECF Nos. 7, 8, 10) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 1, 2021, the Magistrate Judge issued Findings and Recommendation 22 recommending that the petition be dismissed for failure to state cognizable federal habeas claims. 23 (ECF No. 7). The Findings and Recommendation was served on Petitioner and contained notice 24 that any objections were to be filed within thirty (30) days of the date of service of the Findings 25 and Recommendation. In lieu of objections, Petitioner filed two motions seeking a court order 26 issuing a writ of habeas corpus, staying proceedings against Petitioner, and directing officials to 27 produce certain portions of the state court record. (ECF Nos. 8, 10). However, these motions failed to address the analysis and reasoning of the Findings and Recommendation. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 2 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Findings and Recommendation is supported by the record and proper analysis. 4 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 5 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 7 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 8 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 9 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 10 (b) There shall be no right of appeal from a final order in a 11 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 12 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 13 (c) (1) Unless a circuit justice or judge issues a certificate of 14 appealability, an appeal may not be taken to the court of appeals from– 15 (A) the final order in a habeas corpus proceeding in which 16 the detention complained of arises out of process issued by a State court; or 17 (B) the final order in a proceeding under section 2255. 18 (2) A certificate of appealability may issue under paragraph (1) 19 only if the applicant has made a substantial showing of the denial of a constitutional right. 20 (3) The certificate of appealability under paragraph (1) shall 21 indicate which specific issue or issues satisfy the showing required by paragraph (2). 22 23 The Court should issue a certificate of appealability if “reasonable jurists could debate 24 whether (or, for that matter, agree that) the petition should have been resolved in a different 25 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 26 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 27 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find 1 | debatable or wrong, or that the issues presented are deserving of encouragement to proceed 2 | further. Therefore, the Court declines to issue a certificate of appealability. 3 Il. 4 ORDER 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendation issued on March 1, 2021 (ECF No. 7) is 7 ADOPTED; 8 2. Petitioner’s motions (ECF Nos. 8, 10) are DENIED; 9 3. The petition for writ of habeas corpus is DISMISSED; 10 4. The Clerk of Court is DIRECTED to CLOSE the case; and 11 5. The Court DECLINES to issue a certificate of appealability. 12 B IT IS SO ORDERED. 14 | Dated: _May 1, 2021 — 7 : 7 Cb bod SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28