(HC) Fountain v. Director ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST ROGER FOUNTAIN, JR., No. 1:22-cv-01231-ADA-HBK (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 DIRECTOR, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 Respondent. (ECF Nos. 1, 7) 16 17 Petitioner Ernest Roger Fountain, Jr. is a state prisoner proceeding pro se with his petition 18 for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 19, 2023, the assigned Magistrate Judge issued findings and recommendations 21 recommending that the pending first amended petition be dismissed for failure to prosecute and/or 22 comply with a court order. (ECF No. 7.) The findings and recommendations were served on 23 Petitioner and contained notice that any objections thereto were to be filed within fourteen (14) 24 days of service. (Id.) The docket of this matter indicates the findings and recommendations were 25 not successfully served on the Petitioner. See Docket. On January 25, 2023, the Clerk of Court 26 directed Petitioner to file a Notice of Change of Address by April 3, 2023. Id. As of the date of 27 this order, Petitioner has neither filed objections nor a Notice of Change of Address. 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a een ee I NE SII IE III IIE IIS IIIS IIIS IIE ES 1 | de novo review of the case. Thus, having carefully reviewed the entire file, the Court holds the 2 | findings and recommendations to be supported by the record and proper analysis and finds 3 | Petitioner’s failure to file a Notice of Change of Address.! 4 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 5 | whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 6 | has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 7 | allowed in certain circumstances. See Miller-El vy. Cockrell, 537 U.S. 322, 335-36 (2003); 28 8 | U.S.C. § 2253. Where, as here, the Court denies habeas relief on procedural grounds without 9 | reaching the underlying constitutional claims, the Court should issue a certificate of appealability 10 | jurists of reason would find it debatable whether the petition states a valid claim of the denial 11 of a constitutional right and that jurists of reason would find it debatable whether the district court 12 || was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the 13 | present case, the Court finds that reasonable jurists would not find its determination that the 14 | petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed 15 | further. Therefore, the Court declines to issue a certificate of appealability. 16 Accordingly, 17 1. The findings and recommendations issued on January 19, 2023 (ECF No. 7) are 18 adopted in full; 19 3. The petition for writ of habeas corpus (ECF No. 1) is dismissed; 20 4. The Court declines to issue a certificate of appealability; and 21 5. The Clerk of Court is directed to close the case. 22 23 94 | □□ □□ SO ORDERED. 25 Dated: _ May 30, 2023 UNITED f£TATES DISTRICT JUDGE ' Pursuant to the Local Rules, “[e]ach appearing attorney and pro se party is under a continuing duty to notify the 27 | Clerk and all other parties of any change of address or telephone number of the attorney or the pro se party. Absent such notice, service of documents at the prior address of the attorney or pro se party shall be fully effective.” Local 28 | Rule 182(f).