(HC) Fawcett v. Merced County Superior Court ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MARK FAWCETT, Case No. 1:20-cv-01566-AWI-EPG (HC) 9 Petitioner, ORDER ADOPTING FINDINGS AND 10 RECOMMENDATION, DISMISSING PETITION v. FOR WRIT OF HABEAS CORPUS, DIRECTING 11 CLERK OF COURT TO CLOSE CASE, AND MERCED COUNTY SUPERIOR DECLINING TO ISSUE CERTIFICATE OF 12 COURT, APPEALABILITY 13 Respondent. (Doc. No. 6) 14 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. On December 4, 2020, the Magistrate Judge issued Findings and 18 Recommendation that recommended dismissing the petition as an unauthorized successive petition 19 and dismissing Petitioner’s motion to vacate conviction or sentence. Doc. No. 6. The Findings and 20 Recommendation was served on Petitioner and contained notice that any objections were to be filed 21 within thirty days of the date of service of the Findings and Recommendation. To date, no 22 objections have been filed, and the time for doing so has passed. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 24 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 25 Findings and Recommendation is supported by the record and proper analysis. 26 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 27 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 28 El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining whether to 1 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 2 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on 3 appeal, by the court of appeals for the circuit in which the proceeding is held. 4 (b) There shall be no right of appeal from a final order in a proceeding 5 to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense 6 against the United States, or to test the validity of such person’s detention pending removal proceedings. 7 (c) 8 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of 9 appeals from— (A) the final order in a habeas corpus proceeding in 10 which the detention complained of arises out of process issued by a State court; or 11 (B) the final order in a proceeding under section 2255. 12 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of 13 the denial of a constitutional right. 14 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing 15 required by paragraph (2). 16 If a court denies habeas relief on procedural grounds without reaching the underlying 17 constitutional claims, the court should issue a certificate of appealability if “jurists of reason would 18 find it debatable whether the petition states a valid claim of the denial of a constitutional right and 19 that jurists of reason would find it debatable whether the district court was correct in its procedural 20 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present 21 and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not 22 conclude either that the district court erred in dismissing the petition or that the petitioner should 23 be allowed to proceed further.” Id. 24 In the present case, reasonable jurists would not find the Court’s determination that 25 Petitioner’s habeas petition should be dismissed debatable or wrong, or that Petitioner should be 26 allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendation issued on December 4, 2020 (Doc. No. 6) is 3 ADOPTED in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 5 3. Petitioner’s motion to vacate conviction or sentence (Doc. No. 4) is DISMISSED; 6 4. The Clerk of Court is directed to CLOSE the case; and 7 5. The Court DECLINES to issue a certificate of appealability. 8 9 IT IS SO ORDERED. 10 | ow a ~_-SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28