(HC) Tejeda v. California Highway Patrol ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PEDRO JOSE TEJEDA, No. 2:22-cv-01213-DAD-DB (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 CALIFORNIA HIGHWAY PATROL, HABEAS PETITION 15 Respondent. (Doc. No. 5) 16 17 Petitioner Pedro Jose Tejeda is a state prisoner proceeding pro se with a petition for a writ 18 of 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 November 8, 2022, the assigned magistrate judge issued findings and 21 recommendations recommending that this federal habeas action be dismissed without prejudice 22 because petitioner has failed to either pay the required filing fee or file a completed application to 23 proceed in forma pauperis, despite being ordered to do so in an order dated September 2, 2022. 24 (Doc. No. 5.) Those findings and recommendations were served on petitioner and contained 25 notice that any objections thereto were to be filed within thirty (30) days from the date of service. 26 (Id. at 2.) To date, no objections have been filed and the time in which to do so has now passed. 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 28 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 1 | court finds the findings and recommendations to be supported by the record and proper analysis. 2 || Accordingly, the court will dismiss this action, without prejudice, due to petitioner’s failure to 3 || pay the required fee to proceed with this action. 4 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 5 || writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 6 | circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 7 || 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 8 || certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 9 | Circuit Rule 22-1(a); United States vy. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 10 || issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 11 || states a valid claim of the denial of a constitutional right and that jurists of reason would find it 12 || debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 13 | U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 14 || petition to be debatable or conclude that the petition should proceed further. Thus, the court 15 || declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on November 8, 2022 (Doc. No. 5) are 18 adopted in full; 19 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without prejudice, 20 due to petitioner’s failure to pay the required filing fee; 21 3. The court declines to issue a certificate of appealability; and 22 4. The Clerk of the Court is directed to close this case. 23 IT IS SO ORDERED. ated: _ January 4, 2023 Dab A. 2, ayel 25 UNITED STATES DISTRICT JUDGE 26 27 28