(HC) Abdul Basit Jahangir v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ABDUL BASIT JAHANGIR, ) Case No.: 1:23-cv-0219 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, DISMISSING 13 v. ) PETITION FOR WRIT OF HABEAS CORPUS, ) AND DIRECTING CLERK OF COURT TO 14 WARDEN, ) CLOSE CASE ) 15 Respondent. ) (Docs. 1, 11) ) 16 ) 17 The assigned magistrate judge reviewed the petition in this case and found it failed to 18 comply with Local Rule 131(b) and Rule 2 of the Rules Governing Section 2254 Cases, because 19 it was not signed under penalty of perjury. The magistrate judge granted Petitioner the 20 opportunity to cure this deficiency and directed Petitioner to respond within 21 days. (Doc. 2.) 21 Petitioner failed to respond. 22 The magistrate judge then found that Petitioner failed to prosecute the action and failed to 23 comply with the Court’s order, and recommended the petition be dismissed. (Doc. 11.) The 24 Court served the Findings and Recommendations on all parties and advised them that any 25 objections were to be filed within 14 days after service. (Id. at 4.) The Court advised them also 26 that “failure to file objections within the specified time may result in the waiver of rights on 27 appeal.” (Id. at 5, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. 28 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Petitioner has not filed objections, and the 1 | deadline to do so has expired. According to 28 U.S.C. 8 636 (b)(1)(C), the Court conducted a de 2 | novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 3 | magistrate judge’s Findings and Recommendations are supported by the record and proper 4 | analysis. 5 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 6 | district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 7 | Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 8 | petition on the merits, the court may only issue a certificate of appealability “if jurists of reason 9 | could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 10 | jurists could conclude the issues presented are adequate to deserve encouragement to proceed 11 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Though the 12 || petitioner is not required to prove the merits of his case, he must demonstrate “something more 13 | than the absence of frivolity or the existence of mere good faith on his. . . part.” Miller-El, 537 14 | US. at 338. 15 The Court finds that reasonable jurists would not find the determination that the petition 16 | should be dismissed debatable or wrong, or that the issues presented are deserving of 17 || encouragement to proceed further. Petitioner has not made the required substantial showing of the 18 | denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability. 19 Based upon the foregoing, the Court ORDERS: 20 1. The Findings and Recommendations issued on April 19, 2023 (Doc. 11), are 21 ADOPTED in full. 22 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice. 23 3. The Court declines to issue a certificate of appealability. 24 4. The Clerk of the Court is to terminate any pending deadlines/motions and CLOSE 25 the case. 26 7 IT IS SO ORDERED. 2g | Dated: _May 18, 2023 Charis [Tourn > TED STATES DISTRICT JUDGE