(HC) Hicks v. Robertson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKIE LON HICKS, No. 1:21-cv-01276-AWI-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 17) 13 v. ORDER DENYING PETITION FOR WRIT 14 OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER 15 JIM ROBERTSON, JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE 16 Respondent. OF APPEALABILITY 17 18 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. On April 12, 2022, the Magistrate Judge assigned to 20 the case issued Findings and Recommendation to deny the petition on its merits. (Doc. No. 17.) 21 This Findings and Recommendation was served upon all parties and contained notice that any 22 objections were to be filed within thirty (30) days from the date of service of that order. To date, 23 no party has filed objections. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 25 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 26 the Magistrate Judge’s Findings and Recommendation is supported by the record and proper 27 analysis. 28 In addition, the Court declines to issue a certificate of appealability. A state prisoner 1 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 2 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 3 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 4 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 review, on appeal, by the court of appeals for the circuit 6 in which the proceeding is held. 7 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person 8 charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 9 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 10 not be taken to the court of appeals from— 11 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 12 (B) the final order in a proceeding under section 2255. 13 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 14 made a substantial showing of the denial of a constitutional right. 15 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 16 17 If a court denies a petitioner’s petition, the court may only issue a certificate of 18 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 19 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 20 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 21 been resolved in a different manner or that the issues presented were ‘adequate to deserve 22 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 23 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 24 In the present case, the Court finds that Petitioner has not made the required substantial 25 showing of the denial of a constitutional right to justify the issuance of a certificate of 26 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 27 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 28 proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 1 Accordingly, the Court orders as follows: 2 1. The Findings and Recommendations, filed April 12, 2022 (Doc. No. 17), is 3 ADOPTED IN FULL; 4 2. The petition for writ of habeas corpus is DENIED WITH PREJUDICE; 5 3. The Clerk of Court is directed to ENTER JUDGMENT AND CLOSE THE CASE; 6 and, 7 4. The Court DECLINES to issue a certificate of appealability. 8 9 10 IT IS SO ORDERED. pe ~_-SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28