(HC) Kifah v. Sheriff

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 IHAB NADHIM KIFAH, No. 1:24-cv-00856 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. 15) v. 14 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING 15 JOHN ZANONI, SHERIFF, PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF 16 Respondent. COURT TO ENTER JUDGMENT AND CLOSE CASE [17] ORDER DECLINING TO ISSUE 18 CERTIFICATE OF APPEALABILITY 19 Ihab Nadhim Kifah is a state pretrial detainee proceeding pro se and in forma pauperis 20 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . This matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 22 On March 4, 2025, the assigned magistrate judge issued Findings and Recommendations 23 to grant Respondent’s motion to dismiss the petition for lack of jurisdiction and failure to exhaust 24 state remedies. (Docs. 14, 15.) The Court served the Findings and Recommendations on 25 Petitioner and notified him that any objections were due within 21 days. (Docs. 14, 15.) 26 Petitioner was advised that the “failure to file objections within the specified time may result in 27 the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. [28] 1 2014).) Plaintiff did not file objections, and the time to do so has passed. According to 28 U.S.C. 2 § 636(b)(1)(C), this Court performed a de novo review of this case. Having carefully reviewed 3 the matter, the Court concludes the Findings and Recommendations are supported by the record 4 and proper analysis. 5 In addition, the Court declines to issue a certificate of appealability. A state prisoner 6 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 7 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 8 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 9 appealability is 28 U.S.C. § 2253 , which provides as follows: 10 (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 11 appeals for the circuit in which the proceeding is held. 12 (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 13 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. [14] (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 15 appeal may not be taken to the court of appeals from— 16 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 17 court; or 18 (B) the final order in a proceeding under section 2255. 19 (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 20 right. 21 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). [22] 23 If a court denies a petitioner’s petition, the court may only issue a certificate of 24 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. [25] 28 U.S.C. § 2253 (c)(2). To make a substantial showing, the petitioner must establish that 26 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 27 been resolved in a different manner or that the issues presented were ‘adequate to deserve 28 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 1 | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 2 In the present case, the Court finds that Petitioner has not made the required substantial 3 | showing of the denial of a constitutional right to justify the issuance of a certificate of 4 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 5 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 6 | proceed further. Thus, the Court declines to issue a certificate of appealability. Based upon the 7 | foregoing, the Court ORDERS: 8 1. The Findings and Recommendations issued on March 4, 2025, (Doc. 15), are 9 ADOPTED in full. 10 2. Respondent’s motion to dismiss (Doc. 14), is GRANTED. 11 3. The petition for writ of habeas corpus is DISMISSED. 12 4. The Clerk of Court is directed to enter judgment and close the case. 13 5. The Court declines to issue a certificate of appealability. 14 This order terminates the action in its entirety. [15] 16 IT IS SO ORDERED. 17 | Dated: _ April 10, 2025 Charis [Tourn TED STATES DISTRICT JUDGE