(HC) Kirkland v. Diaz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TREVOR R. KIRKLAND, No. 2:21-cv-02018-DB-DAD (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DIAZ, et al., HABEAS PETITION 15 Respondents. (Doc. No. 9) 16 17 18 Petitioner Trevor R. Kirkland is a state prisoner proceeding pro se with a petition for writ 19 of habeas corpus pursuant to 28 U.S.C. § 2254. 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 On December 21, 2022, the assigned magistrate judge issued findings and 22 recommendations recommending that this federal habeas action be dismissed, without prejudice, 23 because petitioner has failed to pay the required $5 filing fee, despite being ordered to do so in an 24 order dated May 25, 2022. (Doc. No. 9.) Those findings and recommendations were served on 25 petitioner and contained notice that any objections thereto were to be filed within fourteen (14) 26 days from the date of service. (Id. at 2.) To date, no objections have been filed and the time in 27 which to do so has long since passed. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 | court finds the findings and recommendations to be supported by the record and proper analysis. 4 | Accordingly, the court will dismiss this action, without prejudice, due to petitioner’s failure to 5 || pay the required fee to proceed with this action. 6 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 7 | writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 8 || circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 9 | 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 10 || certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 11 | Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 12 | issue □ certificate of appealability “if jurists of reason would find it debatable whether the petition 13 || states a valid claim of the denial of a constitutional right and that jurists of reason would find it 14 | debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 15 | U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 16 | petition to be debatable or conclude that the petition should proceed further. Thus, the court 17 | declines to issue a certificate of appealability. 18 Accordingly, 19 1. The findings and recommendations issued on December 21, 2022 (Doc. No. 9) are 20 adopted in full; 21 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without prejudice, 22 due to petitioner’s failure to pay the required filing fee; 23 3. The court declines to issue a certificate of appealability; and 24 4. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. | Dated: _ April 4, 2023 Da A. 2, el 27 UNITED STATES DISTRICT JUDGE 28