(HC) Wadkins v. Evans, No. 1:2007cv01749 - Document 7 (E.D. Cal. 2008)
Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS 6 ; ORDER Dismissing Petition For Writ of Habeas Corpus and Directing Clerk of Court to Enter Judgment; ORDER Declining Issuance of Certificate of Appealability signed by Judge Anthony W. Ishii on 2/2/2008. CASE CLOSED.(Esteves, C)
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(HC) Wadkins v. Evans Doc. 7 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 WAYNE E. WADKINS, 13 Petitioner, 14 15 v. 16 MICHAEL EVANS, Warden, et al., 17 Respondents. 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-01749 AWI GSA HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #6] ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. 21 On December 18, 2007, the Magistrate Judge issued a Findings and Recommendation that 22 recommended the petition for writ of habeas corpus be DISMISSED for failure to exhaust state 23 remedies. This Findings and Recommendation was served on all parties and contained notice that 24 any objections to the Findings and Recommendation were to be filed within thirty (30) days of the 25 date of service of the order. Over thirty (30) days have passed and no party has filed objections. 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de 27 novo review of the case. Having carefully reviewed the entire file, the Court finds that the Findings 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 and Recommendation is supported by the record and proper analysis. 2 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 3 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 4 El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 5 a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 6 (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 in which the proceeding is held. 7 8 (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 charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 9 10 (c) 11 12 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– (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 13 14 (B) the final order in a proceeding under section 2255. 15 (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 right. 16 17 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 18 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability 19 “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or 20 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 21 further.” Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 22 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 23 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 123 S.Ct. at 24 1040. 25 In the present case, the Court finds that reasonable jurists would not find the Court’s 26 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 27 deserving of encouragement to proceed further. Petitioner has not made the required substantial 28 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a U .S. D istrict C ourt E. D . C alifornia cd 2 1 certificate of appealability. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The Findings and Recommendation issued December 18, 2007, is ADOPTED IN FULL; 4 2. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE; 5 3. The Clerk of the Court is DIRECTED to enter judgment; and 6 4. The Court DECLINES to issue a certificate of appealability. 7 8 IT IS SO ORDERED. 9 Dated: 0m8i78 February 2, 2008 /s/ Anthony W. Ishii UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3
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