(HC) Bradford v. Scribner et al, No. 1:2006cv00626 - Document 38 (E.D. Cal. 2009)
Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS 36 ; ORDER Granting Respondent's 31 Motion to Dismiss Petition For Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment; ORDER Declining to Issue Certificate of Appealability signed by Judge Oliver W. Wanger on 2/9/2009. CASE CLOSED. (Esteves, C)
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(HC) Bradford v. Scribner et al Doc. 38 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RAYMOND ALFORD BRADFORD, 10 11 12 13 Petitioner, v. ALLEN K. SCRIBNER, Warden, et al., Respondents. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-00626 OWW-TAG (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 36) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 31) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 On January 9, 2009, the Magistrate Judge assigned to the case filed findings and 20 recommendations recommending the petition for writ of habeas corpus be dismissed because the 21 petition was untimely. (Doc. 36). The findings and recommendations were served on all parties 22 and contained notice that any objections were to be filed within twenty days from the date of 23 service of that order. On January 16, 2009, Petitioner filed objections to the findings and 24 recommendations. (Doc. 37). 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's 27 objections, the Court concludes that the Magistrate Judge’s findings and recommendations are 28 supported by the record and proper analysis. Petitioner's objections present no grounds for 1 Dockets.Justia.com 1 questioning the Magistrate Judge's 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. 4 Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S. Ct. 1029 (2003). The controlling statute in 5 determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as 6 follows: 7 (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. (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. (c)(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 (B) the final order in a proceeding under section 2255. (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. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 8 9 10 11 12 13 14 15 16 If a federal district court denies a habeas petition, the court may only issue a certificate of 17 appealability when the petitioner makes a substantial showing of the denial of a constitutional 18 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 19 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 20 been resolved in a different manner or that the issues presented were ‘adequate to deserve 21 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 22 (2000) (citation omitted). 23 In the present case, the Court finds that Petitioner has not made the required substantial 24 showing of the denial of a constitutional right to justify the issuance of a certificate of 25 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 26 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 27 proceed further. Accordingly, the Court DECLINES to issue a certificate of appealability. 28 /// 2 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. 4 The findings and recommendations filed January 9, 2009 (Doc. 36), are ADOPTED IN FULL; 5 2. Respondent’s motion to dismiss (Doc. 31), is GRANTED; 6 3. The petition for writ of habeas corpus (Doc. 1), is DISMISSED; 7 4. The Clerk of Court is DIRECTED to ENTER JUDGMENT for Respondent and to 8 9 close this case; and 5. The Court DECLINES to issue a certificate of appealability. 10 11 12 IT IS SO ORDERED. 13 Dated: February 9, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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