(HC) Trammell v. State of California

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 NICOLAS TRAMMELL, No. 1:21-cv-00126-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 TO ASSIGN DISTRICT JUDGE FOR STATE OF CALIFORNIA, PURPOSE OF CLOSING CASE AND THEN 15 ENTER JUDGMENT AND CLOSE CASE, Respondent. AND DECLINING TO ISSUE CERTIFICATE 16 OF APPEALABILITY 17 (Doc. No. 8) [18] 19 Petitioner Nicolas Trammell is a state prisoner 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 February 3, 2021, the assigned magistrate judge issued findings and recommendations 23 recommending that the petition be dismissed. (Doc. No. 8.) Those findings and 24 recommendations were served upon all parties and contained notice that any objections thereto 25 were to be filed within twenty-one (21) days after service. (Id. at 3.) No objections have been 26 filed, and the deadline to do so has expired. 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 1 magistrate judge’s findings and recommendations are supported by the record and proper 2 analysis. As explained by the assigned magistrate judge, petitioner seeks dismissal of his 3 conviction but rather than challenge the conviction itself, petitioner seeks dismissal “due to 4 multiple civil rights violations.” (Doc. No. 8 at 2; see, e.g., Doc. No. 1 at 4 (alleging prison 5 guards “yelled verbal sexual slurs at [petitioner]”).) Based on the allegations, petitioner must 6 seek relief by way of a civil rights action instead of a federal habeas action, and the Clerk of the 7 Court will be directed to send petitioner a blank civil rights complaint form. (Doc. No. 8 at 2–3.) 8 In addition, the court declines to issue a certificate of appealability. A state prisoner 9 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 10 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 11 U.S. 322 , 335–36 (2003). If a court denies a petitioner’s petition, the court may only issue a 12 certificate of appealability when a petitioner makes a substantial showing of the denial of a 13 constitutional right. 28 U.S.C. § 2253 (c)(2). To make a substantial showing, the petitioner must 14 establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 15 should have been resolved in a different manner or that the issues presented were ‘adequate to 16 deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 17 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 18 In the present case, the court finds that petitioner has not made the required substantial 19 showing of the denial of a constitutional right to justify the issuance of a certificate of 20 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 21 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 22 proceed further. Thus, the court declines to issue a certificate of appealability. 23 Accordingly, 24 1. The findings and recommendations issued on February 3, 2021 (Doc. No. 8), are 25 adopted in full; 26 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 27 3. The Clerk of the Court is directed to send petitioner a blank civil rights complaint 28 form; 1 4. The Clerk of the Court is directed to assign a district judge to this case for the 2 | purpose of closing the case and then to enter judgment and close the case; and 3 5. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ April 8, 2021 wea rE 6 UNITED STATES DISTRICT JUDGE