Sysourath v. Tilton

Filing 10

ORDER signed by District Judge Lawrence J. O'Neill on 2/4/2009 ADOPTING 9 Findings and Recommendations; DISMISSING Petition for Writ of Habeas Corpus; DIRECTING Judgment be entered for Respondent and DENYING CERTIFICATE OF APPEALABILITY. CASE CLOSED.(Lundstrom, T)

1 2 3 4 5 6 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On November 5, 2008, the Magistrate Judge assigned to the case filed Findings and 20 Recommendations recommending the petition for writ of habeas corpus be dismissed as 21 containing unexhausted claims and for violation of the one-year statute of limitation. (Doc. 9). 22 The Findings and Recommendations were served on Petitioner and contained notice that any 23 objections were to be filed within fifteen days from the date of service of that order. To date, no 24 timely objections to the Findings and Recommendations have been filed. 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 1 v. JAMES E. TILTON, Director, Respondent. SITHASONE SYSOURATH, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-01601-LJO-TAG (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 9) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DENYING CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT

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analysis. Moreover, the Court will deny a certificate of appealability. The requirement that a petitioner seek a certificate of appealability is a gate-keeping mechanism that protects the Court of Appeals from having to devote resources to frivolous issues, while at the same time affording petitioners an opportunity to persuade the Court that, through full briefing and argument, the potential merit of claims may appear. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). However, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S. Ct. 1029 (2003). The controlling statute, 28 U.S.C. § 2253, provides as follows: (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). Accordingly, final orders issued by a federal district court in habeas corpus proceedings are reviewable by the circuit court of appeals, and, in order to have final orders reviewed, a petitioner must obtain a certificate of appealability. This Court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000)(citation omitted). 2

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In the present case, the Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find it debatable that Petitioner has not shown an entitlement to federal habeas corpus relief. Accordingly, the Court will DENY the issuance of a certificate of appealability. ORDER Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendations filed November 5, 2008 (Doc. 9), are ADOPTED IN FULL; 2. 3. 4. This petition for writ of habeas corpus (Doc. 1), is DISMISSED; Issuance of a certificate of appealability is DENIED; and The Clerk of Court is DIRECTED to ENTER JUDGMENT for Respondent and close the file. This order terminates the action in its entirety. IT IS SO ORDERED. Dated: b9ed48 February 4, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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