(HC) Vera v. Reed ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G. MEMO VERA, No. 1:23-cv-01057-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. 5) 14 MELINDA REED, ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK 15 Respondent. OF COURT TO PROVIDE BLANK CIVIL RIGHTS FORMS, AND DIRECTING CLERK 16 OF COURT TO ENTER JUDGMENT AND CLOSE CASE 17 ORDER DECLINING TO ISSUE 18 CERTIFICATE OF APPEALABILITY 19 G. Memo Vera is a state prisoner proceeding pro se and in forma pauperis with a petition 20 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The assigned magistrate judge conducted a preliminary review of the case pursuant to 23 Rule 4 of the Rules Governing § 2254 Cases. (Doc. 5.) The magistrate judge found Petitioner 24 fails to state a cognizable habeas claim, because he challenges conditions of his confinement with 25 the seizure of his legal property. (Id. at 2.) To the extent Petitioner seeks to challenge his 26 conviction, the magistrate judge found the Petition is successive. (Id. at 2-3.) Therefore, the 27 magistrate judge recommended that the petition be dismissed, without prejudice to Petitioner 28 bringing his claims concerning property as a separate civil rights action. (Id. at 3.) 1 Petitioner filed objections to the Findings and Recommendations. (Doc. 10.) However, 2 Petitioner does not dispute that his petition addressed the seizure of property by correctional 3 officers. (See generally id.; see also Doc. 1 at 5.) In addition, he does not dispute the magistrate 4 judge’s finding that he previously sought federal habeas relief with respect to his 1997 conviction 5 in Vera v. Ryan, Case No. 1:04-cv-06349-OWW-TAG. 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de 7 novo review of the case. Having carefully reviewed the entire file, including Petitioner's 8 objections, the Court concludes the Findings and Recommendations are supported by the record 9 and proper analysis. 10 In addition, the Court declines to issue a certificate of appealability. A state prisoner 11 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 12 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 13 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 14 appealability is 28 U.S.C. § 2253, which provides as follows: 15 (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 16 appeals for the circuit in which the proceeding is held. 17 (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 18 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. 19 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 20 appeal may not be taken to the court of appeals from— 21 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 22 court; or 23 (B) the final order in a proceeding under section 2255. 24 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 25 right. 26 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 27 28 If a court denies a petitioner’s petition, the court may only issue a certificate of 1 | appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 2 | □□ U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 3 | “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 4 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 5 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 6 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 7 In the present case, the Court finds Petitioner has not made the required substantial 8 | showing of the denial of a constitutional right to justify the issuance of a certificate of 9 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 10 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 11 | proceed further. Thus, the Court declines to issue a certificate of appealability. Accordingly, the 12 | Court ORDERS: 13 1. The Findings and Recommendations issued on July 21, 2023 (Doc. 5) are 14 ADOPTED in full. 15 2. The petition for writ of habeas corpus is DISMISSED without prejudice to 16 Plaintiff filing a civil rights action. 17 3. The Clerk of Court is directed to provide Petitioner with blank forms for filing a 18 civil rights action. 19 4. The Clerk of Court is directed to enter judgment and close the case. 20 5. The Court declines to issue a certificate of appealability. 21 This order terminates the action in its entirety. 22 73 IT IS SO ORDERED. 24 Dated: _ October 16, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 25 26 27 28