(HC) Bland v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, Case No. 1:22-cv-01171-JLT-CDB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING THE 13 v. PETITION WITH PREJUDICE AND DIRECTING THE CLERK OF COURT TO 14 WARDEN, KERN VALLEY STATE CLOSE THE CASE PRISON, 15 ORDER DECLINING TO ISSUE Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. 12) 17 18 19 On May 31, 2023, the assigned magistrate judge issued findings and recommendations to 20 dismiss Petitioner’s 28 U.S.C. § 2254 petition with prejudice as frivolous and successive. The 21 Court served the findings and recommendations on Petitioner and extended to him 14 days to file 22 objections thereto. More than 14 days have passed and as of the date of this Order, no objections 23 have been filed. The findings and recommendations advised Petitioner that “failure to file 24 objections within the specified time may result in the waiver of rights on appeal.” (Doc. 12); 25 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 26 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this 27 case. Having carefully reviewed the entire file, the Court concludes the findings and recommendations are supported by the record and by proper analysis. In addition, the Court 1 declines to issue a certificate of appealability. A state prisoner seeking a writ of habeas corpus 2 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 3 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). The 4 controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 5 2253, which provides as follows: 6 (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 7 court of appeals for the circuit in which the proceeding is held. 8 (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 9 commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal 10 proceedings. 11 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 12 (A) the final order in a habeas corpus proceeding in which 13 the detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) 16 only if the applicant has made a substantial showing of the denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall 18 indicate which specific issue or issues satisfy the showing required by paragraph (2). 19 If a court denies a petitioner’s petition, the court may only issue a certificate of 20 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 21 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 22 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 23 been resolved in a different manner or that the issues presented were ‘adequate to deserve 24 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 25 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 26 In the present case, the Court finds that Petitioner did not make the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of 1 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 2 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 3 | proceed further. Thus, the Court declines to issue a certificate of appealability. Based upon the 4 | foregoing, the Court ORDERS: 5 1. The findings and recommendations issued on May 31, 2023 (Doc. 12) are ADOPTED 6 IN FULL. 7 2. Petitioner’s First Amended Petition (Doc. 9) is DISMISSED with prejudice. 8 3. The Clerk of Court is directed to enter judgment and close this case. 9 4. The Court declines to issue a certificate of appealability. 10 IT IS SO ORDERED. D Dated: _ July 12, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28