(HC) Scarber v. Clark ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 SPENCER ALEC SCARBER, Case No. 1:21-cv-00880-AWI-SAB-HC 11 Petitioner, ORDER ADOPTING FINDINGS AND 12 RECOMMENDATION, DENYING v. PETITION FOR WRIT OF HABEAS 13 CORPUS, DIRECTING CLERK OF COURT KEN CLARK, TO CLOSE CASE, AND DECLINING TO 14 ISSUE A CERTIFICATE OF Respondent. APPEALABILITY 15 (ECF No. 21) 16 17 Petitioner Spencer Alec Scarber, represented by counsel, is a state prisoner proceeding 18 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 7, 2022, the Magistrate Judge issued Findings and Recommendation 21 recommending the petition be denied. (ECF No. 21). The Findings and Recommendation was 22 served on the parties and contained notice that any objections were to be filed within fourteen 23 (14) days of the date of service of the Findings and Recommendation. To date, no objections 24 have been filed, and the time for doing so has passed. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 27 the Findings and Recommendation is supported by the record and proper analysis. 1 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 4 whether to issue a certificate of 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 6 review, on appeal, by the court of 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 8 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 9 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 10 (c) (1) Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the court of appeals from– 12 (A) the final order in a habeas corpus proceeding in which 13 the detention complained of arises out of process issued by a State court; or 14 (B) the final order in a proceeding under section 2255. 15 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the 16 denial of a constitutional right. 17 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing 18 required by paragraph (2). 19 28 U.S.C. § 2253. 20 If a court denies a habeas petition on the merits, the court may only issue a certificate of 21 appealability “if jurists of reason could disagree with the district court’s resolution of [the 22 petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 23 to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 24 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he 25 must demonstrate “something more than the absence of frivolity or the existence of mere good 26 faith on his . . . part.” Miller-El, 537 U.S. at 338. 27 In the present case, the Court finds that reasonable jurists would not find the Court’s 1 | wrong, or that the issues presented are deserving of encouragement to proceed further. Therefore, 2 | the Court declines to issue a certificate of appealability. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendation issued on October 7, 2022 (ECF No. 21) is 5 ADOPTED IN FULL; 6 2. The petition for writ of habeas corpus is DENIED; 7 3. The Clerk of Court is DIRECTED to CLOSE the case; and 8 4. The Court DECLINES to issue a certificate of appealability. 9 10 IT IS SO ORDERED. 1 | Dated: January 11, 2023 _ i hha SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28