(HC) Stone v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS STONE, No. 1:23-cv-01441-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 v. CERTIFICATE OF APPEALABILITY, AND DIRECTING CLERK OF COURT TO ENTER 15 JUDGMENT AND CLOSE CASE 16 (Doc. 11) WARDEN, 17 Respondent. 18 19 Petitioner Nicholas Stone is a state prisoner proceeding pro se and in forma pauperis with 20 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On October 11, 2023, the assigned magistrate judge issued findings and recommendations 23 to dismiss the petition as successive. Doc. 11. Those findings and recommendations were served 24 upon all parties and contained notice that any objections thereto were to be filed within twenty- 25 one (21) days after service. On November 9, 2023, petitioner filed objections to the findings and 26 recommendations. Doc. 13. Petitioner concedes that he has not sought authorization from the 27 Ninth Circuit to file a second or successive petition as required by 28 U.S.C. § 2244(b)(3)(A). 28 1 See id. Petitioner requests that the Clerk of Court forward him the form to seek such 2 authorization from the Ninth Circuit. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1), the court has conducted a de 4 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 5 court concludes that the magistrate judge’s findings and recommendations are supported by the 6 record and proper analysis. 7 In addition, the court declines to issue a certificate of appealability. A state prisoner 8 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 9 his petition, and an appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 10 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 11 appealability is 28 U.S.C. § 2253, which provides as follows: 12 (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 13 appeals for the circuit in which the proceeding is held. 14 (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 15 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. 16 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 17 appeal may not be taken to the court of appeals from— 18 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 19 court; or 20 (B) the final order in a proceeding under section 2255. 21 (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 22 right. 23 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 24 25 If a court denies a petition, the court may issue a certificate of appealability only when a 26 petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. 27 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable 28 jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 1 | ina different manner or that the issues presented were ‘adequate to deserve encouragement to 2 | proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 3 | U.S. 880, 893 (1983)). 4 In the present case, the court finds that petitioner has not made the required substantial 5 | showing of the denial of a constitutional right to justify the issuance of a certificate of 6 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 7 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 8 || proceed further. Thus, the court declines to issue a certificate of appealability. 9 Accordingly, 10 1. The findings and recommendations issued on October 11, 2023, Doc. 11, are 11 adopted in full; 12 2. The petition for writ of habeas corpus is dismissed; 13 3. The Clerk of Court is directed to close the case; 14 4. The Clerk of Court is directed to forward to petitioner a copy of Ninth Circuit 15 Form 12 — Application for Leave to File a Second or Successive Petition under 28 16 US.C. § 2254; and 17 5. The court declines to issue a certificate of appealability. 18 19 29 | IT IS SO ORDERED. _ 21 Dated: _ September 30, 2024 4h 0 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28