(HC) White v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER DEAN WHITE, No. 1:21-cv-01561-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (ECF No. 7) v. 14 ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK 15 WARDEN, OF COURT TO ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE 16 Respondent. CERTIFICATE OF APPEALABILITY 17 18 Petitioner Roger Dean White is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 20 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On February 15, 2022, the assigned Magistrate Judge issued findings and 22 recommendations to dismiss the petition for failure to present any cognizable grounds for relief 23 and for failure to exhaust state remedies. (ECF No. 7.) Those findings and recommendations 24 were served upon all parties and contained notice that any objections thereto were to be filed 25 within fourteen (14) days after service. Petitioner did not file any objections until April 25, 2022, 26 exceeding the March 1, 2022, filing deadline. (ECF No. 8.) 27 /// 28 /// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Magistrate Judge’s findings and recommendations are supported by the record and proper 4 analysis. Even if the Court were inclined to consider Petitioner’s untimely objections, the two- 5 page document provided fails to address why this Court should not accept the Magistrate Judge’s 6 recommendation to dismiss for failing to amend the petition. Nor do Petitioner’s objections 7 address the underlying deficiencies of the initial petition: the failure to state a cognizable claim 8 for relief and the failure to exhaust state remedies. 9 In addition, the Court declines to issue a certificate of appealability. A state prisoner 10 seeking a writ of habeas corpus has no absolute entitlement to appeal a District Court’s denial of 11 his petition, and an appeal is allowed in only certain circumstances. See Miller-El v. Cockrell, 12 537 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a 13 certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 14 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 15 district judge, the final order shall be subject to review, on appeal, by the court of 16 appeals for the circuit in which the proceeding is held. 17 (b) There shall be no right of appeal from a final order in a proceeding to test 18 the validity of a warrant to remove to another district or place for commitment or 19 trial a person charged with a criminal offense against the United States, or to test 20 the validity of such person’s detention pending removal proceedings. 21 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 22 appeal may not be taken to the court of appeals from— 23 (A) the final order in a habeas corpus proceeding in which the 24 detention complained of arises out of process issued by a State 25 court; or 26 (B) the final order in a proceeding under section 2255. 27 /// 28 /// 1 (2) A certificate of appealability may issue under paragraph (1) only if the 2 applicant has made a substantial showing of the denial of a constitutional 3 right. 4 (3) The certificate of appealability under paragraph (1) shall indicate which 5 specific issue or issues satisfy the showing required by paragraph (2). 6 If a court denies a petitioner’s petition, the court may issue a certificate of appealability 7 only when a petitioner makes a substantial showing of the denial of a constitutional right. 28 8 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 9 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 10 been resolved in a different manner or that the issues presented were ‘adequate to deserve 11 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 12 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 13 In the present case, the Court finds that Petitioner has not made the required substantial 14 showing of the denial of a constitutional right to justify the issuance of a certificate of 15 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 16 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 17 proceed further. Thus, the Court declines to issue a certificate of appealability. 18 Accordingly, 19 1. The findings and recommendations issued on February 15, 2022 (ECF No. 7), are 20 adopted in full; 21 2. The petition for writ of habeas corpus is dismissed; 22 3. The Clerk of Court is directed to enter judgment and close the case; and 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 4. The Court declines to issue a certificate of appealability. 2 This order terminates the action in its entirety. 3 4 5 | ISSO ORDERED. 6 Dated: _ October 5, 2022 ; UNITED $TATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28