(HC) Johnson v. Secretary of Corrections ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC JOHNSON, No. 1:21-cv-01560-JLT-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 SECRETARY OF CORRECTIONS, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 6) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 29, 2021, the magistrate judge issued findings and recommendations 21 recommending that the petition for writ of habeas corpus be as untimely. (Doc. 6.) The findings 22 and recommendations were served petitioner and contained notice that any objections were to be 23 filed within 30 days of the date of service of the findings and recommendations. On January 12, 24 2022, petitioner filed timely objections. (Doc. 9.) 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, including petitioner’s 27 objections, the Court concludes that the findings and recommendation are supported by the record 28 and proper analysis. Petitioner’s objections repeat arguments that were properly rejected in the 1 | findings and recommendations. 2 Having found that petitioner is not entitled to habeas relief, the Court now turns to 3 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 4 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 5 || allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 6 | § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 7 | the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 8 | of reason would find it debatable whether the petition states a valid claim of the denial of a 9 | constitutional right and that jurists of reason would find it debatable whether the district court was 10 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 11 | procedural bar is present and the district court is correct to invoke it to dispose of the case, a 12 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 13 | that the petitioner should be allowed to proceed further.” Jd. 14 In the present case, the Court finds that reasonable jurists would not find the Court’s 15 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 16 | be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 17 | Accordingly, 18 1. The findings and recommendations issued on December 29, 2021 (Doc. 6) are adopted 19 in full. 20 2. The petition for writ of habeas corpus is dismissed. 21 3. The Clerk of Court is directed to close the case; and 22 4. The Court declines to issue a certificate of appealability. 23 IT IS SO ORDERED. 95 Dated: _ February 15, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 26 27 28