(HC) Bailey v. Madden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRIS FRANK BAILEY JR., No. 1:22-cv-01273-JLT-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 RAYMOND MADDEN, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (Doc. 14) 16 17 Demetris Frank Bailey Jr. is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus brought pursuant to 28 U.S.C. § 2254. This 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 The magistrate judge issued findings and recommendations recommending that the 21 petition for writ of habeas corpus be denied. (Doc. 14.) The Court served the findings and 22 recommendations on the parties and notified them that any objections thereto were to be filed 23 within thirty days after service. To date, no objections have been filed, and the time for doing so 24 has passed. 25 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 26 case. Having carefully reviewed the entire file, the Court holds the findings and recommendation 27 to be supported by the record and proper analysis. 28 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 1 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 2 | has no 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. If a court denies a habeas petition on the merits, the court may only issue a certificate of 5 | appealability jurists of reason could disagree with the district court’s resolution of [the 6 || petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 7 || to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 8 | U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must 9 | demonstrate “something more than the absence of frivolity or the existence of mere good faith on 10 | his... part.” Miller-El, 537 US. at 338. 11 The Court finds that reasonable jurists would not find the Court’s determination that the 12 | petition should be denied debatable or wrong, or that Petitioner should be allowed to proceed 13 | further. Petitioner has not made the required substantial showing of the denial of a constitutional 14 | right. Therefore, the Court declines to issue a certificate of appealability. Thus, the Court 15 | ORDERS: 16 1. The findings and recommendations issued on April 26, 2023 (Doc. 14) are 17 ADOPTED IN FULL. 18 2. The petition for writ of habeas corpus is DENIED. 19 3. The Clerk of Court is directed to close the case. 20 4. The Court declines to issue a certificate of appealability. 21 IT IS SO ORDERED. 23 | Dated: _September 22, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 24 25 26 27 28