(HC) Fawcett v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK RANDALL FAWCETT, No. 1:22-cv-00671-ADA-HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING FIRST 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF 14 WARDEN, COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 15 Respondent. APPEALABILITY 16 (ECF Nos. 6, 8) 17 18 Petitioner Mark Randall Fawcett (“Petitioner”) is a state prisoner proceeding pro se with 19 his first amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. (ECF 20 No. 6.) This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(b)(1)(B) and Local Rule 302. 22 On October 14, 2022, the assigned Magistrate Judge issued findings and recommendations 23 recommending that the pending first amended petition be dismissed for failure to state a 24 cognizable claim, and in the alternative, as an unauthorized successive petition. (ECF No. 8.) 25 Those findings and recommendations were served on Petitioner and contained notice that any 26 objections thereto must be filed within fourteen (14) days of service. (Id.) As of the date of this 27 order, Petitioner has not filed objections and the deadline has passed. 28 /// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 | de novo review of the case. Thus, having carefully reviewed the entire file, the Court holds the 3 | findings and recommendations to be supported by the record and proper analysis. 4 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 5 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 6 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 7 | allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 8 | § 2253. Where, as here, the Court denies habeas relief on procedural grounds without reaching 9 | the underlying constitutional claims, the Court should issue a certificate of appealability “if jurists 10 | of reason would find it debatable whether the petition states a valid claim of the denial of a 11 | constitutional right and that jurists of reason would find it debatable whether the district court was 12 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present 13 || case, the Court finds that reasonable jurists would not find the Court’s determination that the 14 | petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 15 | further. Therefore, the Court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on October 14, 2020, (ECF No. 8), are 18 adopted in full; 19 2. The first amended petition for writ of habeas corpus, (ECF No. 6), is dismissed; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of Court is directed to close the case. 22 23 94 | □□ □□ SO ORDERED. 25 Dated: _ December 13, 2022 UNITED fTATES DISTRICT JUDGE 27 28