(HC) Gray v. Asuncion ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EUGENE GRAY, No. 1:21-cv-00595-DAD-JLT (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 RAYBON JOHNSON, Warden, RESPONDENT’S MOTION TO DISMISS 15 Respondent. (Doc. Nos. 13, 18) 16 17 18 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 16, 2021, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s motion to dismiss be granted. (Doc. No. 18.) The magistrate 23 judge found that petitioner had filed his pending petition outside of the one-year limitation period 24 imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that petitioner 25 was not entitled to either statutory or equitable tolling of the statute of limitations, and that 26 petitioner failed to state a cognizable federal claim because federal habeas relief is not available 27 to state prisoners challenging state law. (Id. at 4–6.) These findings and recommendations were 28 served upon all parties and contained notice that any objections were to be filed within twenty- 1 one days from the date of service of that order. (Id. at 6.) To date, no party has filed objections 2 and the time to do so has since passed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 magistrate judge’s findings and recommendations are supported by the record and proper 6 analysis. 7 Having determined that petitioner is not entitled to habeas relief, the court now turns to 8 whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas 9 corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal 10 is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see 11 also 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue 12 a certificate of appealability “if jurists of reason could disagree with the district court’s resolution 13 of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are 14 adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see also 15 Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the 16 merits of his case, he must demonstrate “something more than the absence of frivolity or the 17 existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. Where the court denies 18 habeas relief on procedural grounds without reaching the underlying constitutional claims, the 19 court should issue a certificate of appealability “if jurists of reason would find it debatable 20 whether the petition states a valid claim of the denial of a constitutional right and that jurists of 21 reason would find it debatable whether the district court was correct in its procedural ruling.” 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable 23 jurists would not find the court’s determination that the petition should be dismissed debatable or 24 wrong, or that petitioner should be allowed to proceed further. Petitioner has not made the 25 required substantial showing of the denial of a constitutional right. Therefore, the court declines 26 to issue a certificate of appealability. 27 ///// 28 ///// 1 Accordingly, 2 1. The findings and recommendations issued (Doc. No. 18) on August 16, 2021 are 3 adopted in full; 4 2. Respondent’s motion to dismiss (Doc. No. 13) is granted; 5 3. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 6 4. The court declines to issue a certificate of appealability; and 7 5. The Clerk of Court is directed to close this case. 8 | IT IS SOORDERED. a “ 9 ji je Ff; Dated: _ October 25, 2021 Sea 1" S098 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28