(HC) Bland v. Pfeiffer ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 1:24-cv-0156 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 5) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 CHRISTIAN PFEIFFER, ORDER DECLINING TO ISSUE 17 CERTIFICATE OF APPEALABILITY Respondent. 18 19 Joshua Davis Bland is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon finding the petition was 21 successive, the magistrate judge issued Findings and Recommendations, recommending the 22 petition be dismissed. (Doc. 5.) Petitioner filed timely objections. (Doc. 6.) 23 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 24 case. In his objections, Petitioner contends the magistrate judge incorrectly assumed that 25 Petitioner was proceeding with a habeas petition pursuant to 28 U.S.C. § 2254, when in fact he 26 filed it pursuant to § 2241(c)(3). Petitioner is incorrect. He is in state custody challenging the 27 judgment of a state court. Therefore, Section 2254 applies, and the instant petition is successive. 28 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 1 are supported by the record and proper analysis. 2 In addition, the Court declines to issue a certificate of appealability. A state prisoner 3 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 4 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 5 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 6 appealability is 28 U.S.C. § 2253, which provides as follows: 7 (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 8 appeals for the circuit in which the proceeding is held. 9 (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 10 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 11 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 12 appeal may not be taken to the court of appeals from— 13 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 14 court; or 15 (B) the final order in a proceeding under section 2255. 16 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 17 right. 18 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 19 20 If a court denies a petitioner’s petition, the court may only issue a certificate of 21 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 22 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 23 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 24 been resolved in a different manner or that the issues presented were ‘adequate to deserve 25 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 26 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 27 In the present case, Petitioner has not made the required substantial showing of the denial 28 of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists 1 | would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus 2 | relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court 3 | declines to issue a certificate of appealability. Accordingly, the Court ORDERS: 4 1. The Findings and Recommendations issued on February 7, 2024, (Doc. 5), are 5 ADOPTED in full. 6 2. The petition for writ of habeas corpus is DISMISSED with prejudice. 7 3. The Clerk of Court is directed to enter judgment and close the case. 8 4. The Court declines to issue a certificate of appealability. 9 This order terminates the action in its entirety. 10 IT IS SO ORDERED. 12 | Dated: _February 22, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28