(HC) Foster v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS R. FOSTER, No. 1:22-cv-0866 JLT HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 UNKNOWN, CERTIFICATE OF APPEALABILITY, AND DIRECTING CLERK OF COURT TO CLOSE 15 Respondent. CASE 16 (Doc. 10) 17 18 Petitioner Carlos R. Foster is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) 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 The assigned magistrate judge found Petitioner failed to state a cognizable claim and 22 failed to exhaust administrative remedies. Therefore, the magistrate judge recommended the 23 petition be dismissed on August 19, 2022. (Doc. 10.) The Findings and Recommendations were 24 served upon Petitioner and contained notice that any objections were to be filed within 14 days 25 after service. Petitioner has not filed objections, and the deadline to do so has expired. 26 In accordance with 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of 27 the case. Having carefully reviewed the entire matter, the Court concludes that the magistrate 28 judge’s Findings and Recommendations are supported by the record and proper analysis. 1 Having determined that Petitioner is not entitled to habeas relief, the Court now turns to 2 | whether a certificate of appealability should issue. The federal rules governing habeas cases 3 | brought by state prisoners require a district court issuing an order denying a habeas petition to 4 | either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 5 | 11(a). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an 6 | appeal is only allowed in certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 7 | (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only 8 | with acertificate of appealability). A judge shall grant a certificate of appealability “only if the 9 | applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. 10 | § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, 28 U.S.C. 11 § 2253(c)(3). In the present case, the Court finds that reasonable jurists would not find the 12 | rejection of Petitioner’s claims to be debatable or conclude the petition should proceed further. 13 | Thus, the Court ORDERS: 14 1. The Findings and Recommendations issued on August 19, 2022 (Doc. 10), are 15 ADOPTED in full. 16 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice. 17 3. The Court declines to issue a certificate of appealability. 18 4. The Clerk of the Court is directed to close the case. 19 20 IT IS SO ORDERED. 21 | Dated: _ October 26, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28