(HC) Morse v. Phillips ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD WAYNE MORSE, No. 1:23-cv-00196-JLT-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. No. 12) 14 v. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 BRIAN D. PHILLIPS, ORDER DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY Respondent. 18 19 Gerald Wayne Morse is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The assigned Magistrate Judge issued Findings and Recommendations to deny the petition 23 on its merits. (Doc. 12.) Petitioner filed objections. (Doc. 13.) 24 According to 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a de novo review of the 25 case. Having carefully reviewed the entire file, including Petitioner's objections, the Court 26 concludes that the Magistrate Judge’s Findings and Recommendations are supported by the 27 record and proper 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, 335-336 (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 district judge, the final order shall be subject to review, on appeal, by the court of 6 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 validity of a warrant to remove to another district or place for commitment or 8 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 9 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 10 appeal may not be taken to the court of appeals from— 11 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 12 court; or 13 (B) the final order in a proceeding under section 2255. 14 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 15 right. 16 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 17 18 If a court denies a petitioner’s petition, the court may only issue a certificate of 19 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 20 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 21 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 22 been resolved in a different manner or that the issues presented were ‘adequate to deserve 23 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 24 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 25 The Court finds that Petitioner has not made the required substantial showing of the denial 26 of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists 27 would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus 28 relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court 1 | declines to issue a certificate of appealability. Thus, the Court ORDERS: 2 1. The Findings and Recommendations issued on May 15, 2023, (Doc. No. 12), are 3 adopted in full. 4 2. The petition for writ of habeas corpus is denied with prejudice. 5 3. The Clerk of Court is directed to enter judgment and close the case; and 6 4. The Court declines to issue a certificate of appealability. 7 This order terminates the action in its entirety. 8 9 IT IS SO ORDERED. 10 Dated: _ September 22, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28