(HC) Harris v. Campbell, No. 1:2023cv01765 - Document 25 (E.D. Cal. 2024)

Court Description: ORDER ADOPTING 24 Findings and Recommendations, GRANTING Respondent's Motion to Dismiss 18 , dismissing the Petition for Writ of Habeas Corpus, and directing the Clerk of Court to enter Judgment and close the case, declining to issue certificate of appealability signed by District Judge Jennifer L. Thurston on 10/25/2024. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KIRK T. HARRIS, Petitioner, 12 13 v. 14 T. CAMPBELL, 15 Respondent. Case No. 1:23-cv-01765 JLT SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING THE CLERK OF COURT TO ENTER JUDGMENT AND CLOSE THE CASE 16 (Doc. 24) 17 ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 18 19 Kirk T. Harris is a state prisoner proceeding with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254, which Respondent moved to dismiss as untimely. (Doc. 18.) The 21 magistrate judge found the petition violates the statute of limitations, because any petition should 22 have been filed no later than September 14, 2014. (Doc. 24 at 3.) The magistrate judge also found 23 Petitioner was not entitled to statutory tolling or equitable tolling. (Id. 3-9.) Thus, the magistrate 24 judge recommended Respondent’s motion be granted and the petition be dismissed. (Id. at 9.) 25 The Court served the Findings and Recommendations on the parties and notified them that 26 any objections were due within 30 days. (Doc. 24 at 9.) The Court advised Petitioner the “failure 27 to file objections within the specified time may waive the right to appeal the District Court’s 28 order.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).) Petitioner did not file 1 1 objections, and the time to do so has passed. 2 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 3 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 4 are supported by the record and proper analysis. In addition, the Court declines to issue a 5 certificate of appealability. 6 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 7 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 8 Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). If the Court denies a petitioner’s petition, it 9 may only issue a certificate of appealability when a petitioner makes a substantial showing of the 10 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, Petitioner 11 must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the 12 petition should have been resolved in a different manner or that the issues presented were 13 ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 14 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, Petitioner did 15 not make the required substantial showing of the denial of a constitutional right, and reasonable 16 jurists would not find the determination that Petitioner is not entitled to federal habeas corpus 17 relief debatable, wrong, or deserving of encouragement to proceed. Thus, the Court ORDERS: 18 1. 19 The Findings and Recommendations issued on September 11, 2024 (Doc. 24) are ADOPTED in full. 20 2. Respondent’s motion to dismiss (Doc. 18), is GRANTED. 21 3. The petition for writ of habeas corpus is DISMISSED with prejudice. 22 4. The Clerk of Court is directed to enter judgment and close the case. 23 5. The Court declines to issue a certificate of appealability. 24 25 26 IT IS SO ORDERED. Dated: October 25, 2024 27 28 2

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