(HC)Johnson v. Bird ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACKIE EDWARD JOHNSON, No. 2:21-cv-01370-DAD-DB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 LANDON BIRD, RESPONDENT’S MOTION TO DISMISS THIS ACTION 15 Respondent. (Doc. Nos. 13, 20) 16 17 Petitioner Jackie Edward Johnson is a state prisoner proceeding pro se and in forma 18 pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On May 24, 2022, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s motion to dismiss (Doc. No. 13) be granted because petitioner’s 23 underlying state criminal proceedings are still pending, and thus application of the Younger 24 abstention doctrine requires dismissal of this federal habeas action without prejudice. (Doc. No. 25 20 at 5–7) (citing Younger v. Harris, 401 U.S. 37 (1971)). Those findings and recommendations 26 were served on all parties and contained notice that any objections thereto were to be filed within 27 ///// 28 ///// 1 fourteen (14) days from the date of service. (Id. at 7–8.) To date, no objections have been filed 2 and the time in which to do so has now passed.1 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and proper analysis. 6 Accordingly, respondent’s motion to dismiss the pending petition will be granted. 7 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 8 writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 9 circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 10 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 11 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 12 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 13 issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 14 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 16 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 17 petition to be debatable or conclude that the petition should proceed further. Thus, the court 18 declines to issue a certificate of appealability. 19 Accordingly, 20 1. The findings and recommendations issued on May 24, 2022 (Doc. No. 20) are 21 adopted in full; 22 2. Respondent’s motion to dismiss the pending petition (Doc. No. 13) is granted; 23 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without 24 prejudice; 25 4. Petitioner’s pending discovery motions (Doc. Nos. 6, 19) are denied as having 26 been rendered moot by this order; 27 28 1 This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 21.) 1 5. The court declines to issue a certificate of appealability; and 2 6. The Clerk of the Court is directed to close this case. 3 IT IS SO ORDERED. * | Dated: _November 9, 2022 Dab A. 2, yet 5 UNITED STATES DISTRICY JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28