1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 TERRY RAY HORNBECK, Case No.: 22-cv-395-MMA (DEB) 11 ORDER DIRECTING ENTRY OF 12 Petitioner, FINAL JUDGMENT OF DISMISSAL v. WITOUT PREJUDICE, CLOSING 13 CASE, AND DECLINING TO ISSUE CALIPATRIA STATE PRISON, CERTIFICATE OF 14 APPEALABILITY 15 Respondent. 16 17 On March 24, 2022, Terry Ray Hornbeck (“Petitioner”), a state prisoner 18 proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 19 § 2254 along with an inmate trust account statement, which the Court construed as a 20 motion to proceed in forma pauperis (“IFP”). See Doc. Nos. 1–2. On April 12, 2022, the 21 Court issued an order granting Petitioner’s motion to proceed IFP and dismissing the 22 Petition without prejudice for failure to name a proper defendant and for failure to state a 23 cognizable claim on habeas corpus because Petitioner appeared to only challenge the 24 conditions of his prison life. Doc. No. 4 (the “Dismissal Order”). In the Dismissal 25 Order, the Court directed Petitioner, should he wish to proceed with this habeas action, to 26 file a First Amended Petition curing the pleading deficiencies on or before June 20, 2022. 27 Id. at 3. 28 Three months have elapsed since the June 20, 2022, deadline and Petitioner has not 1 || filed a First Amended Petition in compliance with the Court’s Dismissal Order. 2 || Therefore, the Court DIRECTS the Clerk to enter a final judgment of dismissal without 3 || prejudice in accordance with the Court’s April 12, 2022 Order and to close the case. 4 Because the Court is entering a final order adverse to Petitioner, the Court is 5 || required to issue or deny a certificate of appealability. See Rule 11, 28 U.S.C. foll. 6 || § 2254; see also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 7 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a 8 || substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 9 || standard requires the petitioner to show that “jurists of reason could disagree with the 10 || district court’s resolution of his constitutional claims or that jurists could conclude the 11 ||issues presented are adequate to deserve encouragement to proceed further.” See Slack v. 12 || McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than 13 ||the absence of frivolity or the existence of mere good faith.” Miller-El v. Cockrell, 537 14 || U.S. 322, 338 (2003). Reasonable jurists would not disagree with the Court’s conclusion 15 || or find that this case should proceed further. Therefore, the Court DECLINES to issue a 16 || certificate of appealability. 17 IT IS SO ORDERED. 18 || Dated: September 20, 2022 19 Miki U oI holes 20 Hon. Michael M. Anello United States District Judge 22 23 24 25 26 27 28