(HC) Kindred v. Superior Court of California County of Orange ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 RICHARD SCOTT KINDRED, CASE NO. 1:21-cv-00532-AWI-JLT (HC) 7 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 8 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR 9 SUPERIOR COURT OF CALIFORNIA WRIT OF HABEAS CORPUS, COUNTY OF ORANGE, DIRECTING CLERK OF COURT TO 10 ENTER JUDGMENT AND CLOSE Respondent. CASE, AND DECLINING TO ISSUE 11 CERTIFICATE OF APPEALABILITY 12 (Doc. Nos. 18 & 21) 13 14 Petitioner Richard Scott Kindred is a state prisoner proceeding in propria persona with a 15 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2021, the 16 magistrate judge assigned to the case issued findings and recommendations to grant Respondent’s 17 motion to dismiss. Doc. No. 21. This findings and recommendations were served upon all parties 18 and contained notice that any objections were to be filed within twenty-one days from the date of 19 service of that order. Id. at 4–5. On September 3, 2021, Petitioner filed objections. Doc. No. 22. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 21 de novo review of this case. Having carefully reviewed the entire file, including Petitioner’s 22 objections, the Court concludes that the findings and recommendations are supported by the 23 record and by 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 As this statute makes clear, if a court denies a petitioner’s habeas petition, the court may 16 only issue a certificate of appealability when the petitioner makes a substantial showing of the 17 denial of a constitutional right. § 2253(c)(2). To make a substantial showing, the petitioner must 18 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 19 should have been resolved in a different manner or that the issues presented were ‘adequate to 20 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 21 (quoting Barefoot v. Estelle, 463 U.S. 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 /// 28 /// 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations (Doc. No. 21) that were filed August 12, 2021, 4 are ADOPTED in full; 5 2. Respondent’s motion to dismiss (Doc. No. 18) is GRANTED; 6 3. The first-amended petition for writ of habeas corpus (Doc. No. 11) is DISMISSED; 7 4. The Clerk of Court shall ENTER judgment and CLOSE the file; and 8 5. The Court DECLINES to issue a certificate of appealability. 9 This order terminates the action in its entirety. 10 IT IS SO ORDERED. □□ 12 Dated: _ September 27, 2021 ZS Cb □□ — SENIOR DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28