(HC) Moore v. The People of California, No. 1:2023cv01065 - Document 8 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 7 Findings and Recommendations, Denying Petitioner's Motion to Stay, Dismissing Petition for Writ of Habeas Corpus without Prejudice, Directing Clerk of Court to Close Case, and Declining to Issue Certificate of Appealability signed by District Judge Jennifer L. Thurston on 12/07/2023. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA MOORE, 12 13 14 Petitioner, v. THE PEOPLE OF CALIFORNIA, 15 Respondent. 16 No. 1:23-cv-1065-JLT SAB (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING PETITIONER’S MOTION TO STAY, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Doc. 7) 17 18 19 Christina Moore is proceeding pro se with a petition for writ of habeas corpus. This 20 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 21 Local Rule 302. 22 The magistrate judge issued Findings and Recommendations, finding Petitioner did not 23 exhaust her state judicial remedies. (Doc. 7 at 1-3.) To the extent Petitioner requested a stay, the 24 magistrate judge found she was not entitled to one, as Petitioner did not demonstrate good cause 25 and the petition was completely unexhausted. (Id. at 2-3, citing Rhines v. Weber, 544 U.S. 269 26 (2005), King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009).) Therefore, the magistrate judge 27 recommended Petitioner’s motion to stay be denied and the petition for writ of habeas corpus be 28 dismissed without prejudice for failure to exhaust state judicial remedies. (Id. at 3.) The Court 1 1 served the Findings and Recommendations on Petitioner and notified him that any objections 2 were to be filed within 30 days after service.1 (d. at 3.) The Court also informed Petitioner was 3 that the “failure to file objections within the specified time may waive the right to appeal the 4 District Court’s order.” (Id. at 3-4, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 5 2014).) Petitioner did not file objections, and the time for doing so passed. 6 According to 28 U.S.C. § 636(b)(1)(C), the Court performed a de novo review of the case. 7 Having carefully reviewed the entire file, the Court holds the findings and recommendation to be 8 supported by the record and proper analysis. 9 Having found that Petitioner is not entitled to habeas relief, the Court turns to whether a 10 certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 11 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 12 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 13 § 2253. Where, as here, the Court denies habeas relief on procedural grounds without reaching 14 the underlying constitutional claims, the Court should issue a certificate of appealability “if jurists 15 of reason would find it debatable whether the petition states a valid claim of the denial of a 16 constitutional right and that jurists of reason would find it debatable whether the district court was 17 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 18 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 19 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 20 that the petitioner should be allowed to proceed further.” Id. 21 In this case, the Court finds that reasonable jurists would not find the determination that 22 the petition should be dismissed debatable or wrong, or that Petitioner should be allowed to 23 proceed further. Therefore, the Court declines to issue a certificate of appealability. Thus, the 24 Court ORDERS: 25 1. 26 ADOPTED in full. 27 28 The Findings and Recommendations issued on October 3, 2023 (Doc. 7) are 2. 1 Petitioner’s motion to stay (Doc. 5) is DENIED. The Findings and Recommendations were signed on October 2, 2023, and served on October 3, 2023. 2 1 3. The petition for writ of habeas corpus is DISMISSED without prejudice. 2 4. The Clerk of Court is directed to close the case. 3 5. The Court declines to issue a certificate of appealability. 4 5 6 IT IS SO ORDERED. Dated: December 7, 2023 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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