(HC) Way v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LATRALE D. WAY, No. 2:22-cv-01351-DAD-EFB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 KATHLEEN ALLISON, HABEAS PETITION DUE TO PETITIONER’S FAILURE TO PROSECUTE 15 Respondent. AND FAILURE TO COMPLY WITH A COURT ORDER 16 (Doc. Nos. 13, 16) 17 18 19 Petitioner Latrale D. Way is a state prisoner proceeding pro se with a petition for a writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254. The 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 May 10, 2023, the assigned magistrate judge issued findings and recommendations 23 recommending that this action be dismissed, without prejudice, due to petitioner’s failure to 24 comply with a court order and failure to prosecute this action. (Doc. No. 16.) The findings and 25 recommendations were served upon petitioner and contained notice that any objections thereto 26 were to be filed within fourteen (14) days after service. (Id. at 1–2.) To date, petitioner has not 27 filed any objections and the time in which to do so has passed. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 3 | pending findings and recommendations are supported by the record and proper analysis. 4 Having concluded that the pending petition must be dismissed, the court also declines to 5 | issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 6 | right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El □□□ 7 | Cockrell, 537 U.S. 322, 335-36 (2003). Ifa court denies a petitioner’s petition, the court may 8 | only issue a certificate of appealability when a petitioner makes a substantial showing of the 9 | denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 10 | relief on procedural grounds without reaching the underlying constitutional claims, the court 11 | should issue a certificate of appealability “if jurists of reason would find it debatable whether the 12 | petition states a valid claim of the denial of a constitutional right and that jurists of reason would 13 | find it debatable whether the district court was correct in its procedural ruling.” Slack v. 14 | McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 15 | would not find the court’s determination that the pending petition must be dismissed to be 16 | debatable or wrong. Thus, the court declines to issue a certificate of appealability. 17 Accordingly, 18 1. The findings and recommendations issued on May 10, 2023 (Doc. No. 16) are 19 adopted in full; 20 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 3. Respondent’s pending motion to dismiss (Doc. No. 13) is denied as having been 22 rendered moot by this order; 23 4. The court declines to issue a certificate of appealability; and 24 5. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. °° | Dated: _ June 27, 2023 Da A. 2, el 27 UNITED STATES DISTRICT JUDGE 28