(HC) Nordstrom v. Thompson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONAVON NORDSTROM, No. 2:21-cv-01880-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 PAUL THOMPSON, et al., HABEAS PETITION DUE TO PETITIONER’S FAILURE TO PROSECUTE 15 Respondents. (Doc. No. 11) 16 17 Petitioner Donavon Nordstrom is a federal prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 25, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that this action be dismissed, without prejudice, due to petitioner’s failure to 22 prosecute this action. (Doc. No. 11.) In particular, the service copy of the court’s order dated 23 August 25, 2022, which was mailed to petitioner at his address of record, was returned to the 24 court as undeliverable, “no longer here.” Petitioner was therefore required by Local Rule 183 to 25 file a notice of his change of address with the court no later than November 10, 2022. To date, 26 petitioner has not filed a notice of his change of address or otherwise communicate with the court. 27 The pending findings and recommendations were served upon the parties and contained notice 28 ///// 1 that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 1.) To 2 date, petitioner has not filed any objections and the time in which to do so has passed.1 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 pending findings and recommendations are supported by the record and proper analysis. 6 Having concluded that the pending petition must be dismissed, the court also declines to 7 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 8 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 9 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 10 only issue a certificate of appealability when a petitioner makes a substantial showing of the 11 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 12 relief on procedural grounds without reaching the underlying constitutional claims, the court 13 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 14 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 15 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 17 would not find the court’s determination that the pending petition must be dismissed to be 18 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 19 Accordingly, 20 1. The findings and recommendations issued on April 25, 2023 (Doc. No. 11) are 21 adopted in full; 22 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 23 ///// 24 ///// 25 ///// 26 ///// 27 1 The service copy of the findings and recommendations, which was mailed to petitioner at his 28 address of record, was again returned to the court as “undeliverable, no longer here.” 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: _ June 20, 2023 Dab A. 2, el 5 UNITED STATES DISTRICY JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28