(HC) Sonny D. Barger v. California

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GARY FRANCIS FISHER, AKA SONNY Case No. 1:19-cv-00577-AWI-HBK D. BARGER, III, 12 ORDER ADOPTING FINDINGS AND Petitioner, RECOMMENDATIONS (Doc. No. 12) [13] v. ORDER DISMISSING PETITION FOR 14 WRIT OF HABEAS CORPUS CALIFORNIA, 15 ORDER DIRECTING CLERK OF COURT Respondent. TO ENTER JUDGMENT AND CLOSE 16 CASE 17 NO CERTIFICATE OF APPEALABILITY IS REQUIRED [18] 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254 . On February 10, 2020, the Magistrate Judge 21 assigned to the case issued Findings and Recommendations to dismiss the petition. (Doc. No. 22 12.) These Findings and Recommendations were served upon all parties and contained notice 23 that any objections were to be filed within fourteen days from the date of service of that order. 24 To date, no party has filed objections.1 [26] 27 1 Further, mail addressed to petitioner was returned to the Court as undeliverable on December 28, 2020. (See docket). Petitioner has not updated his address with the Court and the time for 28 doing so has passed. See L.R. 183(b). 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 3 the Magistrate Judge’s Findings and Recommendations are supported by the record and proper 4 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 appeals for the circuit 11 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 trial a person 13 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 appeal may 15 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 court; or [17] (B) the final order in a proceeding under section 2255. [18] (2) A certificate of appealability may issue under paragraph (1) only if the 19 applicant has made a substantial showing of the denial of a constitutional right. 20 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). [21] If a court denies a petitioner’s petition, the court may only issue a certificate of [22] appealability when a petitioner makes a substantial showing of the denial of a constitutional right. [23] 28 U.S.C. § 2253 (c)(2). To make a substantial showing, the petitioner must establish that [24] “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have [25] been resolved in a different manner or that the issues presented were ‘adequate to deserve [26] encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting [27] Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). [28] 1 In the present case, the Court finds that Petitioner has not made the required substantial 2 | showing of the denial of a constitutional right to justify the issuance of a certificate of 3 | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 4 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 5 || proceed further. Thus, the Court DECLINES to issue a certificate of appealability. 6 Accordingly, the Court orders as follows: 7 1. The Findings and Recommendations, filed February 10, 2020 (Doc. No. 12), are 8 ADOPTED IN FULL; 9 2. The petition for writ of habeas corpus is DISMISSED; 10 3, The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and, 11 4. The Court DECLINES to issue a certificate of appealability [12] B IT IS SO ORDERED. 14 | Dated: _March 9, 2021 —. 7 □ Z Cb Led — SENIOR DISTRICT JUDGE