(HC) Holt v. Newsome ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD D. HOLT, JR., No. 1:23-cv-00312-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (ECF No. 6) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO 16 ENTER JUDGMENT AND CLOSE CASE GAVIN NEWSOME, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 18 19 20 21 Petitioner Richard D. Holt, Jr., is a state prisoner proceeding pro se and in forma pauperis 22 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 23 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On March 3, 2023, the assigned magistrate judge issued findings and recommendations to 25 dismiss the petition for failure to exhaust state remedies and for failure to state a cognizable 26 claim. (ECF No. 6.) Those findings and recommendations were served upon all parties and 27 contained notice that any objections thereto were to be filed within twenty-one (21) days after 28 service. On March 27, 2023, petitioner filed objections to the findings and recommendations. 1 (ECF No. 8.) 2 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 3 de novo review of the case. In his objections, Petitioner contends that the court has jurisdiction to 4 consider his claims, because the “P” suffix prevents him from being placed in minimum custody 5 and camp eligibility. (ECF No. 8 at 2.) Petitioner argues that this placement affects his earliest 6 possible release date. (Id.) Petitioner’s claim is speculative and conclusory. He does not state 7 how his earliest possible release date has been affected, nor does he show that success on his 8 claim will in fact result in an earlier release. 9 Moreover, Petitioner has failed to exhaust his state remedies. Petitioner complains that 10 prison authorities have failed to abide by the San Bernardino County Superior Court’s order. As 11 noted by the magistrate judge, Petitioner’s complaint should be directed to the San Bernardino 12 County Superior Court, as that is the court that issued the order that prison authorities are 13 allegedly failing to follow, or the California Court of Appeal for the Fourth District, which is the 14 appellate court for the San Bernardino County Superior Court. (ECF No. 6 at 3.) The exhaustion 15 doctrine requires that Petitioner present his claims to the state courts, including the California 16 Supreme Court, prior to coming to federal court. (Id.) Petitioner has not done so, and the petition 17 must be dismissed. Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 18 In addition, the Court declines to issue a certificate of appealability. A state prisoner 19 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 20 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 21 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 22 appealability is 28 U.S.C. § 2253, which provides as follows: 23 (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 appeal, by the court of 24 appeals for the circuit in which the proceeding is held. 25 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 26 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 27 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 28 appeal may not be taken to the court of appeals from— 1 (A) the final order in a habeas corpus proceeding in which the 2 detention complained of arises out of process issued by a State court; or 3 (B) the final order in a proceeding under section 2255. 4 (2) A certificate of appealability may issue under paragraph (1) only if the 5 applicant has made a substantial showing of the denial of a constitutional right. 6 (3) The certificate of appealability under paragraph (1) shall indicate which 7 specific issue or issues satisfy the showing required by paragraph (2). 8 If a court denies a petitioner’s petition, the court may only issue a certificate of 9 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 10 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 11 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 12 been resolved in a different manner or that the issues presented were ‘adequate to deserve 13 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 14 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 15 In the present case, the court finds that petitioner has not made the required substantial 16 showing of the denial of a constitutional right to justify the issuance of a certificate of 17 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 18 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 19 proceed further. Thus, the court declines to issue a certificate of appealability. 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 ORDER 2 Accordingly, 3 1. The findings and recommendations issued on March 3, 2023, (ECF No. 6), are 4 adopted in full; 5 2. The petition for writ of habeas corpus is dismissed without prejudice; 6 3. The clerk of court is directed to enter judgment and close the case; and 7 4. The court declines to issue a certificate of appealability. 8 This order terminates the action in its entirety. 9 10 11 | TPIS SO ORDERED. 12 Dated: _ May 30, 2023 3 UNITED fTATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28