(HC) Hernandez v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO HERNANDEZ, No. 2:23-cv-00528-DAD-CKD (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 WARDEN, HABEAS PETITION DUE TO PETITIONER’S FAILURE TO PROSECUTE 15 Respondent. AND TO COMPLY WITH A COURT ORDER 16 (Doc. No. 4) 17 18 Petitioner Alejandro Hernandez is a federal prisoner proceeding pro se with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 24, 2023, the court ordered petitioner to either file a motion to proceed in forma 22 pauperis or pay the required filing fee in order to proceed with this habeas action. (Doc. No. 3.) 23 The court provided petitioner with thirty days to comply with that order. (Id. at 1.) Petitioner has 24 not paid the required filing fee to proceed with this action nor filed an application to proceed in 25 forma pauperis, and the deadline in which to do so has passed. 26 Accordingly, on May 9, 2023, the assigned magistrate judge issued findings and 27 recommendations recommending that this action be dismissed, without prejudice, due to 28 petitioner’s failure to comply with the court’s order and failure to prosecute this action. (Doc. 1 | No.4.) The findings and recommendations were served upon petitioner and contained notice that 2 || any objections thereto were to be filed within fourteen (14) days after service. Ud. at 1.) To date, 3 | petitioner has not filed any objections and the time in which to do so has passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 5 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 6 | pending findings and recommendations are supported by the record and proper analysis. 7 Having concluded that the pending petition must be dismissed, the court also declines to 8 || issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 9 | right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El □□ 10 | Cockrell, 537 U.S. 322, 335-36 (2003). Ifa court denies a petitioner’s petition, the court may 11 | only issue a certificate of appealability when a petitioner makes a substantial showing of the 12 | denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 13 | relief on procedural grounds without reaching the underlying constitutional claims, the court 14 | should issue a certificate of appealability “if jurists of reason would find it debatable whether the 15 | petition states a valid claim of the denial of a constitutional right and that jurists of reason would 16 | find it debatable whether the district court was correct in its procedural ruling.” Slack v. 17 | McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 18 | would not find the court’s determination that the pending petition must be dismissed to be 19 | debatable or wrong. Thus, the court declines to issue a certificate of appealability. 20 Accordingly, 21 1. The findings and recommendations issued on May 9, 2023 (Doc. No. 4) are 22 adopted in full; 23 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 24 3. The court declines to issue a certificate of appealability; and 25 4. The Clerk of the Court is directed to close this case. 26 IT IS SO ORDERED. *” | Dated: _ June 27, 2023 Da A. 2, el 28 UNITED STATES DISTRICT JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28