(HC)Patton v. Wasco State Prison ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK PATTON, No. 1:24-cv-00669-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE, DECLINING 14 v. TO ISSUE CERTIFICATE OF APPEALABILITY, AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 WASCO STATE PRISON, (Doc. 8) 17 Respondent. 18 19 20 Petitioner Derrick Patton is a state prisoner proceeding pro se and in forma pauperis with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On September 20, 2024, the assigned magistrate judge issued findings and 24 recommendations to dismiss the petition for failure to prosecute. Doc. 8. Those findings and 25 recommendations were served upon all parties and contained notice that any objections thereto 26 were to be filed within twenty-one (21) days after service. No objections have been filed, and the 27 deadline to do so has expired. 28 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 2 novo review of the case. Having carefully reviewed the file, the Court concludes that the 3 magistrate judge’s findings and recommendations are supported by the record and proper 4 analysis. As the magistrate judge pointed out, petitioner’s initial petition was dismissed with 5 leave to amend for failure to state a claim, and he failed to timely file an amended petition. Doc. 6 8. Additionally, the petitioner did not object to the findings and recommendations and has taken 7 no action in this case since August 12, 2024. See Doc. 5. 8 Having found that petitioner is not entitled to habeas relief, the Court now turns to 9 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 10 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 11 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). If a court 12 denies a habeas petition on the merits, the court may only issue a certificate of appealability “if jurists 13 of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims 14 or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 15 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 16 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 17 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 18 338. 19 In the present case, the Court finds that reasonable jurists would not find the Court’s 20 determination that the petition should be denied debatable, wrong, or deserving of encouragement to 21 proceed further. Petitioner has not made the required substantial showing of the denial of a 22 constitutional right. Therefore, the Court declines to issue a certificate of appealability. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, 2 1. The findings and recommendations issued on September 20, 2024, Doc. 8, are 3 adopted in full; 4 2. The petition for writ of habeas corpus is dismissed with prejudice; 5 3. The Clerk of Court is directed to enter judgment and close the case; and 6 4. The Court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. _ 10 Dated: _ October 23, 2024 4h UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28