(HC)Lawless v. Cates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTOPHER WILLIAM LAWLESS, No. 1:22-cv-0523 JLT EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 BRIAN CATES, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 41) 16 17 Kristopher William Lawless is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 The assigned magistrate judge found Petitioner did not raise a colorable ineffective 21 assistance of counsel claim based upon the reported failure to call character witnesses, and 22 recommended the petition be denied. (Doc. 41.) The Court served the Findings and 23 Recommendations on all parties and notified them that any objections were due within 30 days of 24 the date of service. The Court also informed Petitioner that the failure to file timely objections 25 “may waive the right to appeal the District Court’s order” (Id. at 12, citing Wilkerson v. Wheeler, 26 772 F.3d 834, 839 (9th Cir. 2014), Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) No 27 objections were filed, and the time to do so expired. 28 According 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 that the findings and 2 || recommendations are supported by the record and proper analysis. 3 Having found 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, a certificate of appealability may be 8 | issued only “if 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 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 U.S. at 338. In the present case, the Court finds that reasonable 14 | jurists would not find the determination that the petition should be denied debatable or wrong, or 15 | that Petitioner should be allowed to proceed further. Petitioner has not made the required 16 | substantial showing of the denial of a constitutional right. Therefore, the Court declines to issue a 17 | certificate of appealability. Based upon the foregoing, the Court ORDERS: 18 1. The findings and recommendations issued on October 2, 2023 (Doc. 41) are 19 ADOPTED IN FULL. 20 2. The petition for writ of habeas corpus is DENIED. 21 3. The Clerk of Court is directed to close this case. 22 4. The Court declines to issue a certificate of appealability. 23 IT IS SO ORDERED. os | Dated: _ December 7, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 26 27 28