(HC) Jimmeye v. Byrd, No. 1:2023cv00252 - Document 20 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 19 Findings and Recommendations, GRANTING 17 Respondent's Motion to Dismiss, DENYING 1 Petition for Writ of Habeas Corpus, Directing Clerk of Court to Close Case, and Declining to Issue Certificate of Appealability, signed by District Judge Jennifer L. Thurston on 12/01/2023. CASE CLOSED.(Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELLIX JIMMEYE, III, 12 Petitioner, 13 v. 14 BYRD, Warden, 15 16 17 Respondent. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:23-cv-0252 JLT HBK (HC) ORDER ADOPTING THE FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Docs. 1, 17, 19) Ellix Jimmeye III is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondent moved to dismiss the petition, 19 asserting it was untimely and unexhausted. (Doc. 17 at 2-4.) The matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 1, 2023, the assigned magistrate judge found any petition by Petitioner 22 should have been filed no later than September 10, 2004, and the petition in this action was filed 23 “more than 18 years past the one-year limitations period.” (Doc. 19 at 3-4.) The magistrate judge 24 found there were no grounds identified to toll this limitations period. (Id. at 4-5.) Therefore, the 25 magistrate judge recommended that the Petition be dismissed as time barred. (Id. at 5, 7.) In 26 addition, the magistrate judge noted, “Petitioner concedes that he has not sought administrative 27 review at any level, and other than his direct appeal he did not filed any petitions, applications, or 28 motions with respect to his conviction in any court.” (Id. at 6.) Thus, the magistrate judge found 1 1 the claims were also unexhausted and recommended dismissal for Petitioner’s failure to exhaust 2 administrative remedies. (Id.) Finally, the magistrate judge recommended the Court not issue a 3 certificate of appealability. (Id. at 7.) 4 The Court served the Findings and Recommendations on all parties and notified them that 5 any objections were due with 14 days. (Doc. 19 at 7.) The Court also informed the parties that 6 the “failure to file objections within the specified time may result in the waiver of rights on 7 appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did 8 not file objections, and the deadline to do so expired. 9 According to 28 U.S.C. § 636 (b)(1)(C), the Court performed a de novo review of the 10 case. Having carefully reviewed the entire matter, the Court concludes that the Findings and 11 Recommendations are supported by the record and proper analysis. The Court agrees the Petition 12 should be dismissed—both as untimely and unexhausted—and a certificate appealability should 13 not issue. 14 The federal rules governing habeas cases brought by state prisoners require a district court 15 issuing an order denying a habeas petition to either grant or deny a certificate of appealability. 16 See Rules Governing § 2254 Case, Rule 11(a). A prisoner seeking a writ of habeas corpus has no 17 absolute entitlement to appeal, as an appeal is only allowed in certain circumstances. Miller-El v. 18 Cockrell, 537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas 19 appeals from state prisoners only with a certificate of appealability). A judge shall grant a 20 certificate of appealability “only if the applicant has made a substantial showing of the denial of a 21 constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy 22 this standard, 28 U.S.C. § 2253(c)(3). In the present case, the Court finds that reasonable jurists 23 would not find the rejection of Petitioner’s claims to be debatable or conclude that the petition 24 should proceed further. Based upon the foregoing, the Court ORDERS: 25 1. 26 The Findings and Recommendations issued on November 1, 2023 (Doc. 19) are ADOPTED in full. 27 2. Respondent’s Motion to Dismiss (Doc. 17) is GRANTED. 28 3. The petition for writ of habeas corpus (Doc. 1) is DISMISSED. 2 1 4. The Court declines to issue a certificate of appealability. 2 5. The Clerk of Court is directed to close the case. 3 4 IT IS SO ORDERED. Dated: December 1, 2023 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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