-BAM (HC) Taylor v. Rios, No. 1:2011cv01248 - Document 12 (E.D. Cal. 2011)

Court Description: ORDER Adopting FINDINGS AND RECOMMENDATIONS (Doc.# 10 ), ORDER DISMISSING Petition For Writ Of Habeas Corpus, ORDER Directing Clerk Of Court To Enter Judgment And Close Case, ORDER Declining To Issue Certificate Of Appealability, signed by District Judge Lawrence J. O'Neill on 11/14/2011. CASE CLOSED.(Fahrney, E)

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-BAM (HC) Taylor v. Rios Doc. 12 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 KENNY L. TAYLOR, 1:11-CV-01248 LJO BAM HC 13 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #10] 14 15 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 16 H. A. RIOS, JR., 17 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE Respondent. 18 / ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 19 20 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 21 pursuant to 28 U.S.C. § 2241. 22 On October 26, 2011, the Magistrate Judge issued a Findings and Recommendation that 23 recommended the petition be DISMISSED WITH PREJUDICE. The Findings and 24 Recommendation was served on all parties and contained notice that any objections were to be filed 25 within thirty (30) days of the date of service of the order. 26 On November 8, 2011, Petitioner filed objections to the Findings and Recommendation. In 27 accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 review of the case. Having carefully reviewed the entire file and having considered the objections, 2 the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the 3 record and proper analysis, and there is no need to modify the Findings and Recommendations based 4 on the points raised in the objections. 5 A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district 6 court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 7 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 8 certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 9 (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. 10 11 (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. 12 13 (c) 14 15 (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 16 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 applicant has made a substantial showing of the denial of a constitutional right. 19 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 appealability 22 “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or 23 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 24 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 25 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 26 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 27 338. 28 In the present case, the Court finds that reasonable jurists would not find the Court’s U .S. D istrict C ourt E. D . C alifornia cd 2 1 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 2 deserving of encouragement to proceed further. Petitioner has not made the required substantial 3 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 4 certificate of appealability. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendation issued October 26, 2011, is ADOPTED IN FULL; 7 2. The Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE; 8 3. The Clerk of Court is DIRECTED to enter judgment; and 9 4. The Court DECLINES to issue a certificate of appealability. 10 IT IS SO ORDERED. 11 Dated: b9ed48 November 14, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 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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