(HC) Zeigler v. Benavidez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY LAVEL ZEIGLER, No. 2:23-cv-01365-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 J. BENAVIDEZ, HABEAS PETITION AS AN UNAUTHORIZED SECOND OR 15 Respondent. SUCCESSIVE PETITION 16 (Doc. No. 11) 17 18 Petitioner Anthony Lavel Zeigler is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On August 2, 2023, the assigned magistrate judge issued findings and recommendations 23 recommending that the pending petition (Doc. No. 1) be dismissed for lack of jurisdiction. (Doc. 24 No. 11.) Specifically, the findings and recommendations concluded that the pending petition is a 25 second or successive petition and that petitioner has not first obtained leave from the Ninth 26 Circuit Court of Appeals to proceed with such a petition as is required. (Id. at 1–2.) 27 Those findings and recommendations were served on petitioner and contained notice that 28 any objections thereto were to be filed within fourteen (14) days from the date of service. (Id. at 1 4.) (Id. at 2.) No objections to the pending findings and recommendations have been filed with 2 the court, and the time for doing so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and proper analysis. 6 Having determined that petitioner is not entitled to habeas relief, the court now turns to 7 whether a certificate of appealability should issue. “[A] state prisoner seeking a writ of habeas 8 corpus has no absolute entitlement to appeal a district court’s denial of his petition,” and an 9 appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 10 (2003); see 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a 11 certificate of appealability). Where, as here, “the court denies habeas relief on procedural 12 grounds without reaching the prisoner’s underlying constitutional claims,” the court should issue 13 a certificate of appealability “if jurists of reason would find it debatable whether the petition 14 states a valid claim of the denial of a constitutional right, and that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 16 U.S. 473, 484 (2000). But “[w]here a plain procedural bar is present . . . a reasonable jurist 17 [cannot] conclude either that the district court erred in dismissing the petition or that the petitioner 18 should be allowed to proceed further.” Id. Because the petitioner’s pending application is clearly 19 barred on jurisdictional grounds, the court declines to issue a certificate of appealability. 20 Accordingly, 21 1. The findings and recommendations issued on August 2, 2023 (Doc. No. 11) are 22 adopted in full; 23 2. This petition for writ of habeas corpus (Doc. No. 1) is dismissed for lack of 24 jurisdiction because it is an unauthorized second or successive petition; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. The court declines to issue a certificate of appealability; and 2 4. The Clerk of the Court is directed to close this case. 3 IT IS SO ORDERED. * | Dated: _ October 3, 2023 Dab A. 2, oyel 5 DALE A. DROZD ‘ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28