(HC) Haisch v. Warden ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH WILLIAM HAISCH, No. 1:22-cv-01314-JLT-EPG (HC) 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 12 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 13 WARDEN, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 14 Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 (Docs. 17, 20) 16 17 Kenneth William Haisch is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. The magistrate judge issued findings and 19 recommendations that recommended granting Respondent’s motion to dismiss and dismissing the 20 petition for lack of jurisdiction. (Doc. 20.) The findings and recommendations were served on 21 Petitioner and contained notice that any objections were to be filed within 30 days of the date of 22 service of the findings and recommendations. (Id.) To date, Petitioner has not filed objections. 23 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 24 case. Having carefully reviewed the entire file, the Court concludes the findings and 25 recommendations are supported by the record and proper analysis. Having found that Petitioner is 26 not entitled to habeas relief, the Court now turns to whether a certificate of appealability should 27 issue. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“Where a petition purportedly 28 brought under § 2241 is merely a ‘disguised’ § 2255 motion, the petitioner cannot appeal from the 1 | denial of that petition without a COA.”). A petitioner seeking a writ of habeas corpus has no 2 | absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 3 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 4 | § 2253. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), a petitioner “must 5 | make a substantial showing of the denial of a constitutional right, . . . includ[ing] showing that 6 | reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 7 | been resolved in a different manner or that the issues presented were ‘adequate to deserve 8 || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting 9 | Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 10 The Court finds that reasonable jurists would not find the Court’s determination that the 11 | petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 12 | further. Therefore, the Court declines to issue a certificate of appealability. Accordingly, the 13 | Court ORDERS: 14 1. The findings and recommendations issued on July 6, 2023 (Doc. 20) are ADOPTED 15 IN FULL. 16 2. Respondent’s motion to dismiss (Doc. 17) is GRANTED. 17 3. The petition for writ of habeas corpus is DISMISSED. 18 4. The Clerk of Court is directed to CLOSE THE CASE. 19 5. The Court DECLINES to issue a certificate of appealability. 20 IT IS SO ORDERED. 29 | Dated: _September 17, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28