(HC) Nelson v. Trate ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUFUS LOU NELSON, JR., No. 1:23-cv-00633-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. 5) 14 TRATE, Warden, ORDER DISMISSING PETITION FOR WRIT Respondent. OF HABEAS CORPUS AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 ORDER DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY 18 Rufus Lou Nelson, Jr., is a federal prisoner proceeding pro se and in forma pauperis with 19 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The assigned Magistrate Judge 20 issued Findings and Recommendations to dismiss the petition for lack of jurisdiction. (Doc. 5.) 21 Those Findings and Recommendations were served upon all parties and contained notice that any 22 objections thereto were to be filed within 21 days after service. No objections have been filed, 23 and the deadline to do so has expired. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the Magistrate Judge’s Findings and Recommendations are supported by the record and proper 27 analysis. 28 1 In addition, the Court declines to issue a certificate of appealability. A prisoner seeking a 2 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, 3 and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335- 4 336 (2003). A certificate of appealability is required for a successive § 2255 motion that is 5 disguised as a § 2241 petition. Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. 6 Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). The controlling statute in determining whether to 7 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 8 (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 9 appeals for the circuit in which the proceeding is held. 10 (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 11 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. 12 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 13 appeal may not be taken to the court of appeals from— 14 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 15 court; or 16 (B) the final order in a proceeding under section 2255. 17 (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 18 right. 19 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 20 21 If a court denies a petitioner’s petition, the court may only issue a certificate of 22 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 23 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 24 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 25 been resolved in a different manner or that the issues presented were ‘adequate to deserve 26 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 27 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 28 In the present case, the Court finds that Petitioner has not made the required substantial 1 | showing of the denial of a constitutional right to justify the issuance of a certificate of 2 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 3 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 4 | proceed further. Thus, the Court declines to issue a certificate of appealability. Thus, 5 1. The Findings and Recommendations issued on April 28, 2023, (Doc. 5), are 6 ADOPTED IN FULL. 7 2. The petition for writ of habeas corpus is DISMISSED with prejudice. 8 3. The Clerk of Court is directed to enter judgment and close the case. 9 4. The Court declines to issue a certificate of appealability. 10 This order terminates the action in its entirety. 11 b IT IS SO ORDERED. 13 | Dated: _June 23, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28