(HC) Collins v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALPHONSO COLLINS, No. 1:21-cv-01585-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING THE CLERK OF 14 DAVE CLARK, Warden, COURT TO ASSIGN DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND THEN 15 Respondent. CLOSE CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 1 and 7) 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. On October 29, 2021, the magistrate judge assigned 21 to the case issued findings and recommendations recommending that the petition be dismissed. 22 (Doc. No. 7.) These findings and recommendations were served upon all parties and contained 23 notice that any objections thereto were to be filed within thirty days from the date of service of 24 that order. To date, no party has filed objections. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 27 magistrate judge’s findings and recommendations are supported by the record and proper 28 analysis. 1 In addition, the court declines to issue a certificate of appealability. A state prisoner 2 | seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 3 | his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 4 | v. Cockrell, 537 U.S. 322, 335-336 (2003). Ifa court denies a petitioner’s petition, the court may 5 | only issue a certificate of appealability when a petitioner makes a substantial showing of the 6 | denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 7 || petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 8 | that) the petition should have been resolved in a different manner or that the issues presented 9 || were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 10 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 11 In the present case, the court finds that petitioner has not made the required substantial 12 | showing of the denial of a constitutional right to justify the issuance of a certificate of 13 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 14 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 15 | proceed further. Thus, the court DECLINES to issue a certificate of appealability. 16 Accordingly, the court orders as follows: 17 1. The findings and recommendations, filed October 29, 2021 (Doc. No. 7), are 18 ADOPTED IN FULL; 19 2. The petition for writ of habeas corpus is DISMISSED; 20 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the 21 purpose of closing the case and then to close the case; and, 22 4. The court DECLINES to issue a certificate of appealability. 23 | IT IS SO ORDERED. me □ Dated: _ January 5, 2022 al, Al 4 7 ae 25 UNITED STATES DISTRICT JUDGE 26 27 28