(HC) Caldwell v. Frauenheim ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK R. CALDWELL, No. 2:19-cv-00023-DAD-DB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 SCOTT FRAUENHEIM, HABEAS PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (Doc. Nos. 1, 18) 16 17 Petitioner Derrick R. Caldwell is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 13, 2022, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition for federal habeas relief (Doc. No. 1) be denied on the 22 merits. (Doc. No. 18.) Those findings and recommendations were served on all parties and 23 contained notice that any objections thereto were to be filed within thirty (30) days from the date 24 of service. (Id. at 20–21.) To date, no objections have been filed and the time in which to do so 25 has now passed.1 Petitioner has not otherwise communicated with the court.2 26 1 This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 20.) 27 2 The service copy of the court’s order dated April 18, 2022, which was mailed to petitioner at 28 his address of record, was returned to the court on April 25, 2022 as “Undeliverable, Parole.” 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 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 5 | acertificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 6 | absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 7 | under certain circumstances. 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 8 | (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 9 | court issue or deny a certificate of appealability when entering a final order adverse to a 10 | petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 11 Cir. 1997). If, as here, a court denies a petition for a writ of habeas corpus, the court may only 12 || issue a certificate of appealability when “the applicant has made a substantial showing of the 13 | denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 14 | petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 15 || that) the petition should have been resolved in a different manner or that the issues presented 16 | were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 17 | 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Petitioner has not made such 18 | ashowing. Therefore, the court declines to issue a certificate of appealability. 19 Accordingly, 20 1. The findings and recommendations issued on January 13, 2022 (Doc. No. 18) are 21 adopted in full; 22 2. This petition for writ of habeas corpus (Doc. No. 1) is denied; 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. | bated: _ November 8, 2022 Dah A. 2, yok 27 UNITED STATES DISTRICT JUDGE 28