(HC) Upshaw v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WILLIAM UPSHAW, CASE NO. 1:22-cv-00949-AWI-HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF 14 WARDEN OF C.S.P. LOS ANGELES, COURT TO ENTER JUDGMENT AND CLOSE CASE 15 Respondent. (Doc. Nos. 1, 4) 16 17 Petitioner John William Upshaw is a state prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. On October 25, 19 2022, the magistrate judge assigned to the case issued findings and recommendations to abstain 20 from exercising jurisdiction and dismiss the petition without prejudice. Doc. No. 4. These 21 findings and recommendations were served on all parties and contained notice that any objections 22 were to be filed within fourteen days from the date of service of that order. As of the date of this 23 order Petitioner has not filed objections, and the deadline for doing so has expired. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the magistrate judge’s findings and recommendations are supported by the record and proper 27 analysis. 28 In addition, the Court declines to issue a certificate of appealability. A state prisoner 1 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 2 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 3 U.S. 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 4 appealability is 28 U.S.C. § 2253, which provides as follows: 5 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 6 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 7 (b) There shall be no right of appeal from a final order in a proceeding to test the 8 validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the 9 validity of such person’s detention pending removal proceedings. 10 (c) 11 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 12 (A) the final order in a habeas corpus proceeding in which the 13 detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) only if the 16 applicant has made a substantial showing of the denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall indicate which 18 specific issue or issues satisfy the showing required by paragraph (2). 19 If a court denies a petitioner’s petition, the court may only issue a certificate of 20 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 21 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable 22 jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 23 in a different manner or that the issues presented were ‘adequate to deserve encouragement to 24 proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 25 U.S. 880, 893 & n.4 (1983)). 26 In the present case, the Court finds that Petitioner has not made the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of 28 1 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 2 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 3 | proceed further. Thus, the Court will decline to issue a certificate of appealability. 4 ORDER 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations (Doc. No. 4) issued on October 25, 2022, are 7 ADOPTED in full; 8 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED without 9 prejudice; 10 3. The Clerk of Court shall ENTER judgment and CLOSE the file; and 11 4. The Court DECLINES to issue a certificate of appealability. 12 B IT IS SO ORDERED. 14 || Dated: _December 2, 2022 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28