(HC) Newman v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY L. NEWMAN, III, Case No. 1:20-cv-01118-NONE-HBK 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING 13 v. THAT THE PETITION FOR WRIT OF HABEAS CORPUS BE DENIED 14 CDCR, (Doc. Nos. 1, 4) 15 Respondent. 16 17 Petitioner Jimmy L. Newman, III, a state prisoner proceeding without counsel, has 18 petitioned the court for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner 19 argues that the California Department of Corrections and Rehabilitation has failed to award him 20 certain custody credits to which he is due under California law, wrongfully prolonging his 21 incarceration. (Id. at 3.) Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant 22 federal habeas petition was referred to a United States Magistrate Judge. 23 On August 21, 2020, the assigned magistrate judge issued findings and recommendations 24 recommending that the pending petition be dismissed due to petitioner’s failure to first exhaust 25 his claims by presenting them to the state’s highest court. (Doc. No. 4.) Petitioner indicated that 26 he has not sought state-level review of his claim, which is required by applicable law. (Id. at 2.) 27 Petitioner has not filed any objections to the pending findings and recommendations 28 despite being given the opportunity to do so. 1 Pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the undersigned has reviewed 2 | this case de novo and finds the pending findings and recommendations to be supported by the 3 | record and proper analysis and will adopt the findings and recommendations. 4 The court must now turn to whether a certificate of appealability should be issued. A 5 || petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 6 | denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El □□ 7 1 Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 8 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 9 | petition should have been resolved in a different manner or that the issues presented were 10 || ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 11 } (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 12 || court finds that reasonable jurists would not find the court’s determination that the petition should 13 | be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 14 | Therefore, the court declines to issue a certificate of appealability. 15 Accordingly, the court ORDERS as follows: 16 1. The findings and recommendations issued on August 21, 2020 (Doc. No. 4) are 17 ADOPTED in full; 18 2. The petition for writ of habeas corpus (Doc. No. 1) is DENIED; 19 3. The court DECLINES to issue a certificate of appealability; and 20 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purposes of 21 closure and to close this case. 22 | IT IS SO ORDERED. me □ Dated: _ December 8, 2020 a L A 5 anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28