(HC)Kenneth L. Faulkner v. State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH L. FAULKNER, ) Case No.: 1:21-cv-1612 JLT HBK ) 12 Petitioner, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS, DISMISSING PETITION 13 v. ) FOR WRIT OF HABEAS CORPUS, DECLINING ) TO ISSUE CERTIFICATE OF APPEALABILITY, 14 STATE OF CALIFORNIA, ) AND DIRECTING CLERK OF COURT TO CLOSE ) CASE 15 Respondent. ) ) (Docs. 1, 10) 16 ) 17 Petitioner Kenneth L. Faulkner is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 24, 2022, the assigned magistrate judge issued Findings and Recommendations 21 finding the pending petition was successive and prohibited by 28 U.S.C. § 2244(b). (Doc. 10 at 2-3.) 22 Therefore, the magistrate judge recommended the petition be dismissed for lack of jurisdiction. (Id. at 23 3-4.) The Findings and Recommendations were served upon Petitioner and contained notice that any 24 objections thereto were to be filed within fourteen days after service. (Id. at 4.) In addition, Petitioner 25 was advised the “failure to file objections within the specified time may result in the waiver of rights 26 on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. 27 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Petitioner has not filed objections, and the deadline to 28 do so has expired. 1 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 2 || Having carefully reviewed the entire matter, the Court concludes the magistrate judge’s Findings and 3 || Recommendations are supported by the record and proper analysis. 4 Having determined that Petitioner is not entitled to habeas relief, the Court now turns to 5 || whether a certificate of appealability should issue. The federal rules governing habeas cases brought 6 || by state prisoners require a district court issuing an order denying a habeas petition to either grant or 7 || deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a). A prisoner 8 || seeking a writ of habeas corpus has no absolute entitlement to appeal; an appeal is only allowed in 9 || certain circumstances. Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); see also 28 U.S.C. § 10 || 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a certificate of appealability; 11 || A judge shall grant a certificate of appealability “only if the applicant has made a substantial showing 12 || of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate whicl 13 || issues satisfy this standard, 28 U.S.C. § 2253(c)(3). In the present case, the Court finds reasonable 14 || jurists would not find the rejection of Petitioner’s claims to be debatable or conclude that the petition 15 || should proceed further. Thus, the Court ORDERS: 16 1. The Findings and Recommendations issued on March 24, 2022 (Doc. 10), are adopted 17 in full. 18 2. The petition for writ of habeas corpus (Doc. 1) is dismissed. 19 3. The Court declines to issue a certificate of appealability. 20 4. The Clerk of Court is directed to close the case. 21 22 IT IS SO ORDERED. 23 || Dated: _ April 29, 2022 ( LAW ph L. wary 24 TED STATES DISTRICT JUDGE 25 26 27 28