(HC) King v. Lynch ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KURTIS KING, No. 2:22-cv-01697-DAD-DB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 JEFFREY LYNCH, HABEAS PETITION 15 Respondent. (Doc. Nos. 2, 7) 16 17 Petitioner Kurtis King is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The 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 On October 14, 2022, the assigned magistrate judge issued findings and recommendations 21 recommending that petitioner’s federal habeas petition be dismissed due to petitioner’s failure to 22 state a cognizable claim because “petitioner does not challenge the legality or duration of his 23 custody and does not seek release as a remedy,” rather, petitioner seeks a court order requiring 24 prisons to pay inmates a minimum wage of $15.00 per hour. (Doc. No. 7 at 2.) The pending 25 findings and recommendations were served upon petitioner and contained notice that any 26 objections thereto were to be filed within thirty (30) days after service. (Id.) To date, petitioner 27 has not filed any objections and the time in which to do so 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. Having carefully reviewed the entire file, the court concludes that the 3 || pending findings and recommendations are supported by the record and proper analysis. 4 Having concluded that the pending petition must be dismissed, the court also declines to 5 || issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 6 || right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 7 || Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 8 || only issue a certificate of appealability when a petitioner makes a substantial showing of the 9 || denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 10 || relief on procedural grounds without reaching the underlying constitutional claims, the court 11 | should issue a certificate of appealability “if jurists of reason would find it debatable whether the 12 || petition states a valid claim of the denial of a constitutional right and that jurists of reason would 13 | find it debatable whether the district court was correct in its procedural ruling.” Slack v. 14 || McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 15 | would not find the court’s determination that the pending petition must be dismissed to be 16 || debatable or wrong. Thus, the court declines to issue a certificate of appealability. 17 Accordingly, 18 1. The findings and recommendations issued on October 14, 2022 (Doc. No. 7) are 19 adopted in full; 20 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 21 3. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) is denied as having 22 been rendered moot by this order; 23 4. The court declines to issue a certificate of appealability; and 24 5. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. | Dated: _ January 4, 2023 Dae A. 2, spel 27 UNITED STATES DISTRICT JUDGE 28