(HC) Deljwun Keys v. Woodford, No. 1:2006cv00713 - Document 17 (E.D. Cal. 2009)
Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS 16 ; ORDER Granting 12 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) Deljwun Keys v. Woodford Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DELJWUN KEYS, 9 10 11 Petitioner, v. JEANNE WOODFORD, 12 Respondent. 13 14 ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-00713 OWW-TAG (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 16) ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 12) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 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. On March 14, 2008, Respondent filed a motion to dismiss the instant petition for failure 19 to comply with 28 U.S.C. § 2244(d)’s one year limitation period. (Doc. 12). On January 16, 20 2009, the Magistrate Judge assigned to the case filed findings and recommendations 21 recommending that Respondent’s motion to dismiss be granted. (Doc. 16). The findings and 22 recommendations were served on all parties on January 16, 2009, and contained notice that any 23 objections were to be filed within fifteen days from the date of service of that order. To date, the 24 parties have not filed timely objections to the findings and recommendations. 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, the Court concludes that 27 the Magistrate Judge’s Findings and Recommendations are supported by the record and proper 28 analysis. 1 Dockets.Justia.com 1 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S. Ct. 1029 (2003). The controlling statute in 4 determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as 5 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. (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). 7 8 9 10 11 12 13 14 15 If a federal district court denies a habeas petition, the court may only issue a certificate of 16 appealability when a petitioner makes a substantial showing of the denial of a constitutional 17 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 18 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 19 been resolved in a different manner or that the issues presented were ‘adequate to deserve 20 encouragement to proceed further’.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 21 (2000)(citation omitted). 22 In the present case, the Court finds that Petitioner has not made the required substantial 23 showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 25 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 26 proceed further. Accordingly, the Court DECLINES to issue a certificate of appealability. 27 /// 28 /// 2 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. 4 The findings and recommendations filed January 16, 2009 (Doc. 16), are ADOPTED IN FULL; 5 2. Respondent’s motion to dismiss (Doc. 12), 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 IT IS SO ORDERED. 11 Dated: February 9, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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