(HC) Slaven v. Covello ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 LEONARD A. SLAVEN, CASE NO. 1:20-cv-00606-AWI-JLT (HC) 8 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING 9 RESPONDENT’S MOTION TO v. DISMISS, DISMISSING PETITION FOR 10 WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO 11 PATRICK COVELLO, ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE 12 Respondent. CERTIFICATE OF APPEALABILITY 13 (Doc. Nos. 25 & 29) 14 15 Petitioner Leonard A. Slaven is a state prisoner proceeding in propria persona with a 16 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 28, 2021, the magistrate 17 judge assigned to the case issued a findings and recommendation to grant Respondent’s motion to 18 dismiss. Doc. No. 29. This findings and recommendation was served on all parties and contained 19 notice that any objections were to be filed within twenty-one days from the date of service of that 20 order. To date, no party has filed objections. 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, the Court concludes that the 23 magistrate judge’s findings and recommendation is supported by the record and proper analysis. 24 In addition, the Court declines to issue a certificate of appealability. A state prisoner 25 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 26 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 27 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 28 appealability provides as follows: 1 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test the 3 validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the 4 validity of such person’s detention pending removal proceedings. 5 (c) 6 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 7 (A) the final order in a habeas corpus proceeding in which the 8 detention complained of arises out of process issued by a State court; or 9 (B) the final order in a proceeding under section 2255. 10 (2) A certificate of appealability may issue under paragraph (1) only if the 11 applicant has made a substantial showing of the denial of a constitutional right. 12 (3) The certificate of appealability under paragraph (1) shall indicate which 13 specific issue or issues satisfy the showing required by paragraph (2). 14 28 U.S.C. § 2253. 15 If a court denies a petitioner’s petition, the court may only issue a certificate of 16 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 17 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 18 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 19 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 20 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 21 880, 893 & n.4 (1983)). 22 In this case, the Court finds that Petitioner has not made the required substantial showing 23 of the denial of a constitutional right to justify the issuance of a certificate of appealability. 24 Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to 25 federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 26 Thus, the Court will decline to issue a certificate of appealability. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The findings and recommendation (Doc. No. 29) that was filed on April 28, 2021, 1 is ADOPTED in full; 2 2. Respondent’s motion to dismiss (Doc. No. 25) is GRANTED; 3 3. Petitioner’s first-amended petition for writ of habeas corpus (Doc. No. 22) is 4 DISMISSED; 5 4. The Clerk of Court is directed to ENTER judgment and CLOSE the file; and 6 5. The Court DECLINES to issue a certificate of appealability. 7 This order terminates the action in its entirety. 8 9 IT IS SO ORDERED. 109 | Dated: _ June 30, 2021 ZS Cb □□ — SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28