(HC) Alcaras v. Thompson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EFRAIN CARDENAS ALCARAS, No. 2:21-cv-01767-DAD-DMC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 PAUL THOMPSON, et al., RESPONDENTS’ MOTION TO DISMISS THIS ACTION 15 Respondents. (Doc. Nos. 8, 11) 16 17 Petitioner Efrain Cardenas Alcaras is a federal prisoner proceeding pro se with a petition 18 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 1, 2022, the assigned magistrate judge issued findings and recommendations 21 recommending that respondent’s motion to dismiss (Doc. No. 8) be granted due to petitioner’s 22 failure to first exhaust his administrative remedies and failure to state a claim upon which relief 23 can be granted under 28 U.S.C. § 2241. (Doc. No. 11.) Those findings and recommendations 24 were served on all parties and contained notice that any objections thereto were to be filed within 25 fourteen (14) days from the date of service. (Id. at 5.) To date, no objections have been filed and 26 the time in which to do so has now passed.1 27 28 1 This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 12.) 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, respondents’ motion to dismiss the pending petition will be granted. 5 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 6 || writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 7 || circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 8 || 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 9 || certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 10 | Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 11 | issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 12 || states a valid claim of the denial of a constitutional right and that jurists of reason would find it 13 || debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 14 | U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 15 || petition to be debatable or conclude that the petition should proceed further. Thus, the court 16 || declines to issue a certificate of appealability. 17 Accordingly, 18 1. The findings and recommendations issued on August 1, 2022 (Doc. No. 11) are 19 adopted in full; 20 2. Respondents’ motion to dismiss the pending petition (Doc. No. 8) is granted; 21 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 22 4. The court declines to issue a certificate of appealability; and 23 5. The Clerk of the Court is directed to close this case. 24 IT IS SO ORDERED. * | Dated: _ November 10, 2022 Dab A. 2, ayel 26 UNITED STATES DISTRICT JUDGE 27 28