(HC) Briggs v. Shirley ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY LEE BRIGGS, No. 1:23-cv-00471-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (ECF No. 5) 14 v. ORDER DISMISSING PETITION FOR WRIT 15 OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT 16 AND CLOSE CASE HEATHER SHIRLEY, 17 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 18 19 Petitioner Johnny Lee Briggs (“Petitioner”) is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter 21 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 22 Rule 302. 23 On April 12, 2023, the assigned Magistrate Judge issued findings and recommendations to 24 summarily dismiss the petition for failure to exhaust state remedies. (ECF No. 5.) Those findings 25 and recommendations were served upon all parties and contained notice that any objections thereto 26 were to be filed within twenty-one (21) days after service. No objections have been filed, and the 27 deadline to do so has expired. 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 the 3 Magistrate Judge’s findings and recommendations are supported by the record and proper analysis. 4 In addition, the Court declines to issue a certificate of appealability. A state prisoner 5 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 6 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 7 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 8 appealability is 28 U.S.C. § 2253, which provides as follows: 9 (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 10 appeals for the circuit in which the proceeding is held. 11 (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 12 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. 13 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 14 appeal may not be taken to the court of appeals from— 15 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 16 court; or 17 (B) the final order in a proceeding under section 2255. 18 (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 19 right. 20 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 21 22 If a court denies a petitioner’s petition, the Court may only issue a certificate of appealability 23 when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 24 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 25 could debate whether (or, for that matter, agree that) the petition should have been resolved in a 26 different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 27 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 28 893 (1983)). 1 In the present case, the Court finds that Petitioner has not made the required substantial 2 | showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. 3 | Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal 4 | habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, 5 | the Court declines to issue a certificate of appealability. 6 Accordingly, 7 1. The findings and recommendations issued on April 12, 2023, (ECF No. 5), are 8 adopted in full; 9 2. The petition for writ of habeas corpus is dismissed without prejudice; 10 3. The Clerk of Court is directed to enter judgment and close the case; and 11 4. The Court declines to issue a certificate of appealability. 12 This order terminates the action in its entirety. 13 14 15 | IT IS SO ORDERED. 16 Dated: _ June 30, 2023 UNITED fTATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28