(HC) Sholes v. Cates ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE ANTHONY SHOLES, No. 1:21-cv-01006-ADA-HBK (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 14 B.CATES, Warden, RESPONDENT’S MOTION TO DISMISS, DENYING MOTION TO STAY AND HOLD 15 Respondent. PETITION IN ABEYANCE, DISMISSING PETITION FOR WRIT OF HABEAS 16 CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO 17 ISSUE CERTIFICATE OF APPEALABILITY 18 (Doc. Nos. 14, 21) 19 20 21 Petitioner Tyrone Anthony Shoes is a state prisoner proceeding pro se with a petition for 22 writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United 23 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On November 29, 2021, the assigned magistrate judge issued findings and 25 recommendations recommending that respondent’s motion to dismiss be granted and the petition 26 for writ of habeas corpus be dismissed as untimely and for failure to state a cognizable claim. 27 (Doc. No. 21.) Those findings and recommendations were served on petitioner and contained 28 notice that any objections were to be filed within fourteen (14) days of service. (Id.) On 1 December 15, 2021, petitioner filed a “motion for stay and abeyance and leave to amend the 2 petition,” which the court construed as timely filed objections to the findings and 3 recommendations. (Doc. No. 22.) On December 29, 2021, respondent filed a reply to petitioner’s 4 objections. (Doc. No. 24.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 7 objections and respondent’s reply, the court holds the findings and recommendations to be 8 supported by the record and proper analysis. Additionally, the court finds respondent’s reply to 9 petitioner’s objections persuasive and denies petitioner’s request to stay and hold the petition in 10 abeyance to allow petitioner time to exhaust state law claims. Granting a stay and abeyance is not 11 appropriate when a petitioner’s unexhausted claims would be meritless. Rhines v. Weber, 544 12 U.S. 269, 277 (2005). As the magistrate judge concluded, AEDPA’s statute of limitations 13 presents a procedural bar to this petition. (Doc. 21 at 4–10.) Any claims related to this petition 14 that petitioner seeks to exhaust in state court would, once exhausted, also be time barred and, 15 therefore, meritless. 16 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 17 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 18 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 19 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 20 § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 21 the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 22 of reason would find it debatable whether the petition states a valid claim of the denial of a 23 constitutional right and that jurists of reason would find it debatable whether the district court was 24 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present 25 case, the court finds that reasonable jurists would not find the court’s determination that the 26 petition should be dismissed debatable or wrong, or that petitioner should be allowed to proceed 27 further. Therefore, the court declines to issue a certificate of appealability. 28 /// 1 | Accordingly, 2 1. The findings and recommendations issued on November 29, 2021 (Doc. No. 21) 3 are adopted in full; 4 2. Petitioner’s motion to stay and hold in abeyance the petition (Doc. No. 22) is 5 denied 6 3. Respondent’s motion to dismiss (Doc. No. 14) is granted; 7 4. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 8 5. The court declines to issue a certificate of appealability; and 9 6. The Clerk of Court is directed to close the case. 10 11 12 | TIS SO ORDERED. 13 Dated: _ September 2, 2022 4 UNITED f£TATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28