(HC) Hawk v. Davey ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID HAWK, No. 1:16-cv-0795 JLT EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 DAVID DAVEY, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 60) 16 17 18 David Hawk is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 The magistrate judge issued Findings and Recommendations, recommending that the 22 petition be denied. (Doc. 60.) The Court served the Findings and Recommendations on the 23 parties with a notice that any objections were to be filed within 30 days of the date of service. 24 (Id. at 54-55.) In addition, the Court warned Petitioner that the “failure to file objections within 25 the specified time may waive the right to appeal the District Court’s order.” (Id. at 55, citing 26 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).) To date, no objections have been filed, 27 and the time for doing so has passed. 28 Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court performed a de novo review of the case. 1 | Having carefully reviewed the entire matter, the Court concludes the Findings and 2 | Recommendations are supported by the record and proper analysis. 3 Having found that Petitioner is not entitled to habeas relief, the Court turns to whether a 4 | certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 5 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 6 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 7 | § 2253. If a court denies a habeas petition on the merits, the Court may only issue a certificate of 8 | appealability jurists of reason could disagree with the district court’s resolution of [the 9 | petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 10 || to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 11 | U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must 12 || demonstrate “something more than the absence of frivolity or the existence of mere good faith on 13 | his... part.” Miller-El, 537 US. at 338. 14 The Court finds that reasonable jurists would not find the determination that the petition 15 | should be denied debatable or wrong, or that Petitioner should be allowed to proceed further. 16 | Petitioner has not made the required substantial showing of the denial of a constitutional right. 17 | Therefore, the Court declines to issue a certificate of appealability. Accordingly, the Court 18 | ORDERS: 19 1. The Findings and Recommendations issued on October 12, 2023 (Doc. 60) are 20 ADOPTED IN FULL. 21 2. The petition for writ of habeas corpus is DENIED. 22 3. The Clerk of Court is directed to close the case. 23 4. The Court declines to issue a certificate of appealability. 24 95 IT IS SO ORDERED. 26 Dated: _ December 7, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 27 28