(HC) Moses v. People of the State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY MOSES, No. 1:21-cv-01260-DAD-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 THERESA CISNEROS, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 15 Respondent. DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 16 (Doc. Nos. 10, 15) 17 18 19 Petitioner Sammy Moses is a state prisoner proceeding pro se with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On February 11, 2022,1 the assigned magistrate judge issued findings and 23 recommendations that recommended granting respondent’s motion to dismiss and dismissing the 24 petition as untimely. (Doc. No. 15.) On March 7, 2022, petitioner filed timely objections. (Doc. 25 No. 18.) 26 ///// 27 1 The findings and recommendations were signed on February 10, 2022, but not docketed until 28 February 11, 2022. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 3 objections, the court holds the findings and recommendation to be supported by the record and 4 proper analysis. 5 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 6 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 7 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 8 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 9 § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 10 the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 11 of reason would find it debatable whether the petition states a valid claim of the denial of a 12 constitutional right and that jurists of reason would find it debatable whether the district court was 13 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 14 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 15 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 16 that the petitioner should be allowed to proceed further.” Id. 17 In the present case, the court finds that reasonable jurists would not find the court’s 18 determination that the petition should be dismissed debatable or wrong, or that petitioner should 19 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 20 Accordingly: 21 1. The findings and recommendations issued on February 11, 2022 (Doc. No. 15) are 22 adopted in full; 23 2. Respondent’s motion to dismiss (Doc. No. 10) is granted; 24 3. The petition for writ of habeas corpus is dismissed; 25 4. The Clerk of Court is directed to close the case; and 26 /// 27 /// 28 /// 1 5. The court declines to issue a certificate of appealability. 2 3 4 | ISSO ORDERED. 5 Dated: _ September 12, 2022 ‘ UNITED $TATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28