(HC) Ellis v. KVSP

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 CHARLES ELLIS, SR., No. 1:22-cv-00540-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 (Doc. No. 6) 14 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DENYING MOTION 15 FOR PRELIMINARY INJUNCTION, DIRECTING CLERK OF COURT TO ENTER 16 JUDGMENT AND CLOSE CASE, AND WARDEN-KVSP, DECLINING TO ISSUE CERTIFICATE OF 17 APPEALABILITY Respondent. [19] 20 Petitioner Charles Ellis Sr. is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 23 On May 9, 2022, the assigned magistrate judge issued findings and recommendations to 24 dismiss the petition and deny the motion for preliminary injunction. (Doc. Nos. 2, 6.) Those 25 findings and recommendations were served upon all parties and contained notice that any 26 objections thereto were to be filed within twenty-one (21) days after service. On May 25, 2022, 27 the findings and recommendations served on petitioner were returned by the U.S. Postal Service 28 as “undeliverable, not in custody.” 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 the 3 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 allowed in only 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 issue a certificate of appealability 24 only when a petitioner makes a substantial showing of the denial of a constitutional right. 28 25 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. 7 Accordingly, 8 1. The findings and recommendations issued on May 9, 2022, (Doc. No. 6) are 9 adopted in full; 10 2. The motion for preliminary injunction (Doc. No. 2) is denied; 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; and 13 5. The court declines to issue a certificate of appealability. 14 This order terminates the action in its entirety. [16] 17 | TIS SO ORDERED. 18 Dated: _ September 8, 2022 19 UNITED fTATES DISTRICT JUDGE