(HC) Craig v. D'Agostini ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHN CRAIG, No. 2:21-cv-00890-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 JOHN D’AGOSTINI, et al., HABEAS PETITION FOR FAILURE TO PROESCUTE, FAILURE TO STATE A 15 Respondents. CLAIM, AND FAILURE TO COMPLY WITH A COURT ORDER 16 (Doc. No. 20) 17 18 Petitioner Norman John Craig is a state prisoner proceeding pro se in this action, in which 19 petitioner initially filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, though 20 petitioner subsequently suggested that his intent was to bring a civil rights action pursuant to 42 21 U.S.C. § 1983. (Doc. Nos. 1, 3, 5, 10.) The matter was referred to a United States Magistrate 22 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On October 7, 2022, the assigned magistrate judge issued findings and recommendations 24 recommending that this action be dismissed due to petitioner’s failure to prosecute, failure to 25 comply with a court order, and failure to state a cognizable claim for federal habeas relief or a 26 cognizable § 1983 claim. (Doc. No. 20.) In particular, on June 9, 2022, the court had ordered 27 petitioner to file either an amended habeas petition, a § 1983 complaint, or a notice of voluntary 28 dismissal of this action. (Doc. No. 18.) Petitioner was warned that his failure to comply with that 1 order would result in a recommendation that this action be dismissed. (Id. at 2.) To date, 2 petitioner has not complied with the June 9, 2022 order or otherwise communicated with the 3 court. The pending findings and recommendations were served upon petitioner and contained 4 notice that any objections thereto were to be filed within fourteen (14) days after service. (Doc. 5 No. 20 at 2.) To date, petitioner has not filed any objections and the time in which to do so has 6 passed.1 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 8 de novo review of the case. Having carefully reviewed the entire file, the court concludes that 9 the pending findings and recommendations are supported by the record and proper analysis. 10 Having concluded that the pending petition must be dismissed, the court also declines to 11 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 12 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 13 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 14 only issue a certificate of appealability when a petitioner makes a substantial showing of the 15 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 16 relief on procedural grounds without reaching the underlying constitutional claims, the court 17 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 18 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 19 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 20 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 21 would not find the court’s determination that the pending petition must be dismissed to be 22 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 23 Accordingly, 24 1. The findings and recommendations issued on October 7, 2022 (Doc. No. 20) are 25 adopted in full; 26 27 1 Both the June 9, 2022 order and the October 7, 2022 findings and recommendations were served on petitioner by mail at his address of record, and neither were returned to the court as 28 undeliverable. 1 2. The petition for writ of habeas corpus (Doc. Nos. 1, 10) is dismissed; 2 3. This action is dismissed, without prejudice, due to petitioner’s failure to comply 3 with a court order, failure to prosecute, and failure to state a cognizable claim for 4 relief; 5 4. The court declines to issue a certificate of appealability; and 6 5. The Clerk of the Court is directed to close this case. 7 IT IS SO ORDERED. * | Dated: November 1, 2022 Dab A. 2, aol 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28