(HC) Jacobson v. Saray ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN JACOBSON, No. 1:20-cv-01465-DAD-SAB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 14 CESAR SARAY, RESPONDENT’S MOTION TO DISMISS, AND DISMISSING PETITION FOR WRIT 15 Respondent. OF HABEAS CORPUS 16 (Doc. Nos. 8, 21) 17 18 Petitioner Jonathan Jacobson is proceeding with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 21 On May 25, 2021, the assigned magistrate judge issued findings and recommendations, 22 recommending that respondent’s motion to dismiss be granted and that the pending petition be 23 dismissed for lack of jurisdiction. (Doc. No. 21.) The pending findings and recommendations 24 were served on petitioner with notice that any objections thereto were to be filed within thirty 25 (30) days of service. (Id. at 5.) On June 18, 2021, petitioner filed a statement of non-opposition 26 to the magistrate judge’s recommendation that his petition be dismissed for lack of jurisdiction. 27 (Doc. No. 22.) 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 | de novo review of this case. Having carefully reviewed the entire file, the court concludes that 3 | the findings and recommendations are supported by the record and proper analysis. 4 In addition, having concluded that the pending petition must be dismissed, the court now 5 | turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of 6 | habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an 7 | appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 8 | (2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds 9 | without reaching the underlying constitutional claims, the court should issue a certificate of 10 | appealability “if jurists of reason would find it debatable whether the petition states a valid claim 11 | of the denial of a constitutional right and that jurists of reason would find it debatable whether the 12 | district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 | In the present case, the court finds that reasonable jurists would not find the court’s determination 14 | that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to 15 | proceed further. Therefore, the court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on May 25, 2021 (Doc. No. 21.) are 18 adopted in full; 19 2. Respondent’s motion to dismiss (Doc. No. 8) is granted; 20 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 4. The court declines to issue a certificate of appealability; and 22 5. The Clerk of the Court is directed to close this case. 23 | IT IS SO ORDERED. me □ Dated: _ July 8, 2021 Yole A Lara 25 UNITED STATES DISTRICT JUDGE 26 27 28