Chavez v. Stainer, et al

Filing 19

FINDINGS and RECOMMENDATIONS to Grant Respondent's 13 Motion to Dismiss the Petition 1 , Dismiss Petitioner's Motion for an Evidentiary Hearing 3 , Dismiss the Petition for Lack of Subjet Matter Jurisdiction, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 10/16/13. Thirty-Day Deadline. Referred to Judge O'Neill. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ARTHUR CHAVEZ, Case No. 1:13-cv-00436-LJO-SKO-HC 12 FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 13, 1), DISMISS PETITIONER’S MOTION FOR AN EVIDENTIARY HEARING (DOC. 3), DISMISS THE PETITION FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 13 Petitioner, v. 14 15 M. STAINER, Warden, et al., Respondents. 16 17 18 Petitioner is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2254. The matter has been referred to the Magistrate Judge 21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. 22 Pending before the Court is Respondent’s motion to dismiss the 23 petition, which was filed on June 3, 2013. Petitioner filed 24 opposition to the motion on July 29, 2013. Respondent filed a reply 25 on August 6, 2013. 26 I. Proceeding by a Motion to Dismiss 27 Because the petition was filed after April 24, 1996, the 28 effective date of the Antiterrorism and Effective Death Penalty Act 1 1 of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 2 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 3 1499 (9th Cir. 1997). 4 A district court must award a writ of habeas corpus or issue an 5 order to show cause why it should not be granted unless it appears 6 from the application that the applicant is not entitled thereto. 7 U.S.C. § 2243. 28 Habeas Rule 4 permits the filing of “an answer, 8 motion, or other response,” and thus it authorizes the filing of a 9 motion in lieu of an answer in response to a petition. Rule 4, 10 Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This 11 gives the Court the flexibility and discretion initially to forego 12 an answer in the interest of screening out frivolous applications 13 and eliminating the burden that would be placed on a respondent by 14 ordering an unnecessary answer. 15 Adoption. Advisory Committee Notes, 1976 Rule 4 confers upon the Court broad discretion to take 16 “other action the judge may order,” including authorizing a 17 respondent to make a motion to dismiss based upon information 18 furnished by respondent, which may show that a petitioner’s claims 19 suffer a procedural or jurisdictional infirmity, such as res 20 judicata, failure to exhaust state remedies, or absence of custody. 21 Id. 22 The Supreme Court has characterized as erroneous the view that 23 a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. 24 See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 25 269 n. 14 (1978); but see Lonchar v. Thomas, 517 U.S. 314, 325-26 26 (1996). However, in light of the broad language of Rule 4, motions 27 to dismiss are appropriate in cases that proceed pursuant to 28 28 U.S.C. ' 2254 and present issues of failure to state a colorable 2 1 claim under federal law, O=Bremski v. Maas, 915 F.2d 418, 420-21 (9th 2 Cir. 1990); procedural default in state court, White v. Lewis, 874 3 F.2d 599, 602-03 (9th Cir. 1989); and failure to exhaust state court 4 remedies, Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 5 1982). 6 Analogously, a motion to dismiss a petition for a lack of 7 subject matter jurisdiction, such as Respondent’s motion in the 8 instant case, is appropriate because a federal court is a court of 9 limited jurisdiction with a continuing duty to determine its own 10 subject matter jurisdiction and to dismiss an action where it 11 appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982) 13 (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); 14 Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 15 II. Background 16 Petitioner, an inmate of the California Correctional 17 Institution at Tehachapi, California, alleges 1) his indeterminate 18 Security Housing Unit (SHU) term pursuant to a gang validation 19 implicates a liberty interest; 2) there was an absence of evidence 20 to support the finding of Petitioner=s active gang association 21 because the evidence was false, insufficient, and unreliable, and it 22 failed to comply with the pertinent regulatory standards established 23 by California law and due process standards of gang validation 24 protocol; 3) the prison authorities should expunge from his prison 25 central file (C-File) evidence of the validation of May 6, 2008, 26 which was rejected by the Kern County Superior Court in In re 27 Chavez, Kern County Superior Court case number HC11175A, by order 28 dated March 3, 2010 (appearing at pet., doc. 1 at 49); 4) the CDCR 3 1 continues to rely on the 2008 gang validation previously rejected by 2 the Kern County Superior Court; and 5) Petitioner=s declaration and 3 his behavior in custody for the last twenty-one years attest to his 4 inactive gang status. (Pet., doc. 1, 5-6, 11-12.) Petitioner prays 5 for reversal of his gang validation, appointment of counsel, and an 6 order of immediate release from the SHU to the general prison 7 population. 8 (Id. at 12.) Petitioner details his history with gang validation during his 9 incarceration in the California Department of Corrections and 10 Rehabilitation (CDCR), which has included validations as an 11 associate of the “EME” in 1990 and 1995; an apparently stipulated 12 validation as an inactive gang associate in January 2004; 13 revalidation as an active associate of the EME on May 6, 2008, which 14 Petitioner alleges he successfully challenged, although the CDCR 15 allegedly continues to rely on it; and validation on November 30, 16 2010, as an associate of the EME, which Petitioner asserts was based 17 on inadequate evidence. Petitioner challenges the support for the 18 finding, including a confidential memorandum regarding a note 19 wrongly attributed to Petitioner based on a mistaken gang moniker, 20 and other materials which Petitioner argues lacked a statement of 21 reliability. (Pet., doc. 1, 12-15.) 22 III. Absence of Subject Matter Jurisdiction 23 Respondent moves to dismiss the petition on the ground that 24 Petitioner’s claims are not cognizable because they do not affect 25 the fact or duration of his confinement. Respondent contends that 26 even if the claims were cognizable in a § 2254 proceeding, 27 Petitioner has failed to allege any facts to support a cognizable 28 federal claim because he alleges violations of state law and 4 1 concedes he received the process due under clearly established 2 federal law. 3 A court will not infer allegations supporting federal 4 jurisdiction. A federal court is presumed to lack jurisdiction; 5 subject matter jurisdiction must always be affirmatively alleged. 6 Fed. R. Civ. P. 8(a); Stock West, Inc. v. Confederated Tribes of the 7 Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). When a 8 federal court concludes that it lacks subject matter jurisdiction, 9 the court must dismiss the action. Arbaugh v. Y&H Corp., 546 U.S. 10 500, 514 (2006); Moore v. Maricopa County Sheriff=s Office, 657 F.3d 11 890, 894 (9th Cir. 2011). 12 A district court may entertain a petition for a writ of habeas 13 corpus by a person in custody pursuant to the judgment of a state 14 court only on the ground that the custody is in violation of the 15 Constitution, laws, or treaties of the United States. 28 U.S.C. '' 16 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 17 (2000); Wilson v. Corcoran, 562 U.S. B, -, 131 S.Ct. 13, 16 (2010) 18 (per curiam). 19 A habeas corpus petition is the correct method for a prisoner to 20 challenge the legality or duration of his confinement. Badea v. 21 Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. 22 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to 23 Habeas Rule 1, 1976 Adoption. Claims challenging the validity of a 24 prisoner=s continued incarceration, including the fact or length of 25 confinement, are within the Aheart of habeas corpus@ and are 26 cognizable only in federal habeas corpus. Preiser v. Rodriguez, 411 27 U.S. at 498-99, 499 n.14. 28 In contrast, a civil rights action pursuant to 42 U.S.C. 5 1 ' 1983 is the proper method for a prisoner to challenge the 2 conditions of that confinement but not the fact or length of the 3 custody. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 4 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to 5 Habeas Rule 1, 1976 Adoption. 6 Decisions of prison administrators may affect the duration of 7 confinement. For example, a decision in a prison disciplinary 8 proceeding that results in a loss of previously earned time credits 9 is a core habeas challenge to the duration of a sentence that must 10 be raised by habeas corpus. Superintendent v. Hill, 472 U.S. 445, 11 454 (1985) (determining a procedural due process claim concerning 12 loss of time credits resulting from disciplinary procedures and 13 findings); Preiser v. Rodriguez, 411 U.S. 475, 500. 14 The Supreme Court has addressed the limits of habeas 15 jurisdiction and ' 1983 jurisdiction; however, the limits on habeas 16 jurisdiction and the appropriate extent of any overlap between 17 habeas and ' 1983 have not been addressed by the Supreme Court. The 18 Supreme Court has noted the possibility of habeas as a potential 19 alternative remedy to a ' 1983 action for unspecified additional and 20 unconstitutional restraints during lawful custody, Preiser v. 21 Rodriguez, 411 U.S. at 499-500. However, the Court has declined to 22 address whether a writ of habeas corpus may be used to challenge 23 conditions of confinement as distinct from the fact or length of 24 confinement itself, see, Bell v. Wolfish, 441 U.S. 520, 527 n.6 25 (1979); Fierro v. Gomez, 77 F.3d 301, 304 n.2 (9th Cir. 1996), 26 vacated on other grounds, 519 U.S. 918 (1996). 27 Nevertheless, the Supreme Court continues to recognize a Acore@ 28 of habeas corpus that refers to suits where success would inevitably 6 1 affect the legality or duration of confinement. Where a successful 2 suit=s effect on the duration of confinement is less likely, the 3 prisoner has a remedy by way of ' 1983, and the matter is not within 4 the core of habeas corpus. See, e.g., Wilkinson v. Dotson, 544 U.S. 5 at 82 (a new opportunity for review of parole eligibility, or a new 6 parole hearing at which authorities could discretionarily decline to 7 shorten a prison term, would not inevitably lead to release, and the 8 suit would not lie at the core of habeas corpus); Wilkinson v. 9 Austin, 545 U.S. 209 (2005) (' 1983 action for procedural due 10 process challenges to administrative placement in the harsh 11 conditions of a supermax prison where such placement precluded 12 parole consideration). 13 In the context of parole, the Ninth Circuit has recognized a 14 possibility of habeas jurisdiction in suits that do not fall within 15 the core of habeas corpus. See, Bostic v. Carlson, 884 F.3d 1267 16 (9th Cir. 1989) (habeas jurisdiction over a claim seeking 17 expungement of a disciplinary finding likely to accelerate 1 18 eligibility for parole) ; Docken v. Chase, 393 F.3d 1024 (9th Cir. 19 2004) (a claim challenging the constitutionality of the frequency of 20 parole reviews, where the prisoner was seeking only equitable 21 relief, was held sufficiently related to the duration of 22 confinement). However, where a successful challenge to a 23 disciplinary hearing or administrative action will not necessarily 24 shorten the overall length of confinement, habeas jurisdiction is 25 lacking. 26 In Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003), a prisoner 27 1 The Court notes that Bostic involved a suit pursuant to 28 U.S.C. 28 ' 2241, not ' 2254. 7 1 sought relief pursuant to ' 1983 for allegedly unconstitutional 2 disciplinary proceedings that resulted in administrative 3 segregation. Expungement of the disciplinary action was not likely 4 to accelerate eligibility for parole; rather, success would have 5 meant only an opportunity to seek parole from a board that could 6 deny parole on any ground already available to it. 7 did not threaten to advance the parole date. Thus, the suit Id. at 859. The Court 8 held that ' 1983 was the appropriate remedy because the alleged 9 constitutional errors did not affect the overall length of the 10 prisoner=s confinement; success in the ' 1983 action would not 11 necessarily have resulted in an earlier release from incarceration, 12 and the ' 1983 suit did not intrude upon the core or Aheart@ of 13 habeas jurisdiction. 14 Ramirez, 334 F.3d at 852, 858. The court in Ramirez further considered the related question of 15 the extent of habeas corpus jurisdiction, expressly stating that its 16 holding Aalso clarifies our prior decisions addressing the 17 availability of habeas corpus to challenge the conditions of 18 imprisonment.@ 334 F.3d at 858. The court reviewed the decisions in 2 19 Bostic v. Carlson and Neal v. Shimoda and concluded as follows: 20 21 22 23 24 Our decision in Neal v. Shimoda, 131 F.3d 818 (9th Cir.1997), illustrates the importance of measuring the likelihood that a suit under ' 1983 will affect the length of the prisoner's confinement. In Neal, two state prisoners filed suits under ' 1983 alleging that they were classified as sex offenders in violation of the Due Process and Ex Post Facto guarantees. Id. at 822-23. Among 25 2 In Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), it was held that success 26 in a suit challenging administrative placement in a state sex offender program which rendered the participants ineligible for parole did not necessarily affect 27 the duration of confinement because success would not necessarily shorten the inmate=s sentence, but would mean at most that the inmate would be eligible for 28 parole consideration. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other harms, both inmates argued that the classification affected their eligibility for parole. Id. We held that Heck did not require the inmates to invalidate their classification before bringing suit under ' 1983, because a favorable judgment Awill in no way guarantee parole or necessarily shorten their prison sentences by a single day.@ Id. at 824. The prisoner suits did not seek to overturn a disciplinary decision that increased their period of incarceration. Rather, a successful ' 1983 action would provide only Aa ticket to get in the door of the parole board.@ Id. A favorable judgment, therefore, would not Aundermine the validity of their convictions,@ or alter the calculus for their possible parole. Id. Neal makes clear that under Preiser habeas jurisdiction is proper where a challenge to prison conditions would, if successful, necessarily accelerate the prisoner's release. Thus, Neal accords with our holding here that habeas jurisdiction is absent, and a ' 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence. Ramirez, 334 F.3d at 858-59. California=s policy of assigning suspected gang affiliates to the secured housing unit (SHU) is not a disciplinary measure, but rather an administrative strategy designed to preserve order in the prison and to protect the safety of all inmates. 104 F.3d 1096, 1098 (9th Cir. 1997). Munoz v. Rowland, An inmate=s liberty interest in being free from the more restrictive conditions of confinement in secured housing is generally protected by the Due Process Clause, which requires notice of the factual basis for the administrative action, an opportunity to be heard, and notice of any adverse decision. Cf., Wilkinson v. Austin, 545 U.S. 209, 223-25 (2005). Placement in administrative segregation or secured housing, however, does not necessarily affect the legality or duration of the inmate=s confinement. 9 Petitioner argues that habeas corpus jurisdiction exists 1 2 because his gang validation has a potential or likely effect on the 3 duration of his confinement. (Pet., doc. 1, 8-11.) He cites to 4 cases from this district and other California district courts that 5 either expressly find jurisdiction to review gang validations that 6 result in an indeterminate sentence to administrative segregation, 7 decline to address the jurisdictional issue, or simply consider the 8 merits without discussing jurisdiction. (Id. at 10-11.) Petitioner 9 contends it is more efficient to address the merits of claims, and 10 that because California’s Board of Parole Hearings (BPH) refuses to 11 parole any gang associates, his validation directly and inevitably 12 affects his sentence. (Id. at 16.) On September 4, 2008, after he 13 was validated, Petitioner received a three-year denial or 14 “stipulation” from the California Board of Parole Hearings, and he 15 waived parole consideration on August 2011 pending the outcome of 16 the instant proceedings. (Id. at 111-16, exh. 19.) Petitioner is serving a sentence of fifteen years to life and 17 18 has been afforded what are identified as life prisoner progress 19 reports and hearings. (Pet., doc. 1, at 40, 67, 114, 118.) As 20 Respondent notes, as an indeterminately sentenced prisoner, 21 Petitioner will be released on parole only after being found 3 22 suitable for parole. Considering the numerous factors considered by 23 24 25 26 27 28 3 Prisoners sentenced to an indeterminate life sentence, such as fifteen years to life, must be found suitable for parole before release on parole. Cal. Pen. Code § 3041; see also, Cal. Code Regs., tit. 15, § 2400-2402. The BPH will give primary consideration to the gravity of the commitment offense in determining whether the inmate poses a current risk to society and thus is unsuitable. Cal. Pen. Code § 3041(b). The BPH will consider all available relevant, reliable information, including not only the commitment offense, but also the inmate’s social and criminal history, past and present mental state, past and present attitude toward the crime, and many other circumstances. Cal. Code Regs.tit. 15, § 2402(b) - (d). 10 1 the BPH in determining parole suitability, even if Petitioner 2 succeeded in challenging his gang validation, it would not guarantee 3 him parole. 4 Further, Petitioner has not shown that placement in 5 administrative segregation or secured housing necessarily affects 6 the legality or duration of his confinement; the effect of his 7 placement on the duration of his confinement is speculative. 8 Petitioner also retains the opportunity to debrief regarding his 9 gang affiliation and to change his gang status voluntarily. See, 10 Cal. Code Regs., tit. 15, § 3378. 11 Petitioner’s allegations that his gang validation proceedings 12 lacked reliable evidence and involved constitutional violations 13 concern only the conditions of his confinement. The remedies he 14 seeks (release from the security housing unit and removal of a 15 chronological classification record that documents his gang status) 16 also pertain only to conditions of confinement. 17 Although Petitioner alleges he has a liberty interest in 18 avoiding placement in a secured housing unit, the Supreme Court has 19 held that where an inmate has a liberty interest in avoiding a 20 housing placement with conditions that involve atypical and 21 significant hardships, due process purposes is afforded if the state 22 provides the inmate with notice of the adverse decision, reasons for 23 the decision, and an opportunity to be heard. 24 Austin, 545 U.S. 209, 223-29. Cf., Wilkinson v. Petitioner admits he received these 25 protections concerning the 2010 validation. (Pet., doc. 1, 30-32, 26 69.) 27 Here, the state courts adjudicated Petitioner’s claim 28 concerning his 2010 validation proceedings, concluding that there 11 1 was reliable evidence to sustain the validation, Petitioner was 2 afforded classification reviews of his placement, and there have 3 been no due process violations on the part of the CDCR. 4 1, 122-26, 128.) (Pet., doc. To obtain relief in a proceeding pursuant to 5 § 2254, Petitioner must show that the state court adjudication 6 resulted in a decision that was contrary to, or involved an 7 unreasonable application of, clearly established federal law, as 8 determined by the Supreme Court of the United States. 9 2254(d)(1). 28 U.S.C. § To be clearly established federal law, a Supreme Court 10 case must squarely address an issue, its cases must provide a 11 categorical or clear answer to the question, or its cases must 12 clearly extend to the factual context in question; if a principle 13 must be modified to be applied to a case, it is not clearly 14 established federal law. Wright v. Van Patten, 552 U.S. 120, 124-26 15 (2008); Carey v. Musladin, 549 U.S. 70, 76-77 (2006); Moses v. 16 Payne, 555 F.3d 742, 752, 754, 760 (9th Cir. 2009). Even if 17 Petitioner could show an effect on the duration of his confinement, 18 the protections provided for in Wilkinson v. Austin constitute the 19 only applicable protections required by clearly established federal 20 law within the meaning of 28 U.S.C. § 2254. 21 Because Petitioner has received the only process to which he is 22 entitled, Petitioner could not show that the state court decision 23 was contrary to, or an unreasonable application of, clearly 24 established federal law. Consequently, Petitioner could not state 25 facts that point to a real possibility of constitutional error or 26 otherwise state facts that would entitle him to relief in a 27 § 2254 proceeding. 28 12 1 Similarly, Petitioner’s claims concerning the violation of 2 state statutes and regulations would not entitle him to relief in 3 this proceeding. Federal habeas relief is available to state 4 prisoners only to correct violations of the United States 5 Constitution, federal laws, or treaties of the United States; it is 6 not available to retry a state issue that does not rise to the level 7 of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. 8 C , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 9 (1991). Alleged errors in the application of state law are not 10 cognizable in federal habeas corpus. 11 616, 623 (9th Cir. 2002). Souch v. Schaivo, 289 F.3d The Court accepts a state court's 12 interpretation of state law, Langford v. Day, 110 F.3d at 1389, and 13 is bound by the California Supreme Court=s interpretation of 14 California law unless the interpretation is deemed untenable or a 15 veiled attempt to avoid review of federal questions. 16 Woodford, 255 F.3d 926, 964 (9th Cir. 2001). Murtishaw v. Here, there is no 17 indication that the state court’s interpretation of state law was 18 associated with an attempt to avoid review of federal questions. 19 Thus, this Court is bound by the state court’s interpretation and 20 application of state law. 21 Petitioner has not alleged facts that demonstrate success in 22 this suit would necessarily affect the legality or duration of his 23 confinement. Further, Petitioner’s allegations concerning 24 procedural due process and violations of state law would not entitle 25 him to relief and do not constitute cognizable claims. The Court 26 concludes that Petitioner has not alleged facts that demonstrate 27 subject matter jurisdiction in this Court over a cognizable claim 28 13 1 pursuant to § 2254. Accordingly, it will be recommended that the 2 petition for writ of habeas corpus be dismissed. 3 IV. Petitioner’s Motion for an Evidentiary Hearing 4 On March 25, 2013, Petitioner filed a motion for an evidentiary 5 hearing to assess credibility of witnesses and to resolve 6 unspecified material facts in dispute. (Doc. 3.) Because it will be 7 recommended that the petition be dismissed for lack of subject 8 matter jurisdiction, it will be recommended that Petitioner’s motion 9 for an evidentiary hearing be dismissed as moot. 10 V. Certificate of Appealability 11 Unless a circuit justice or judge issues a certificate of 12 appealability, an appeal may not be taken to the Court of Appeals 13 from the final order in a habeas proceeding in which the detention 14 complained of arises out of process issued by a state court. 28 15 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 16 (2003). A certificate of appealability may issue only if the 17 applicant makes a substantial showing of the denial of a 18 constitutional right. ' 2253(c)(2). Under this standard, a 19 petitioner must show that reasonable jurists could debate whether 20 the petition should have been resolved in a different manner or that 21 the issues presented were adequate to deserve encouragement to 22 proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting 23 Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should 24 issue if the Petitioner shows that jurists of reason would find it 25 debatable whether: (1) the petition states a valid claim of the 26 denial of a constitutional right, or (2) the district court was 27 correct in any procedural ruling. Slack v. McDaniel, 529 U.S. at 28 483-84. 14 1 In determining this issue, a court conducts an overview of the 2 claims in the habeas petition, generally assesses their merits, and 3 determines whether the resolution was wrong or debatable among 4 jurists of reason. Id. An applicant must show more than an absence 5 of frivolity or the existence of mere good faith; however, the 6 applicant need not show that the appeal will succeed. Miller-El v. 7 Cockrell, 537 U.S. at 338. 8 A district court must issue or deny a certificate of 9 appealability when it enters a final order adverse to the applicant. 10 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does 11 not appear that reasonable jurists could debate whether the petition 12 should have been resolved in a different manner. Petitioner has not 13 made a substantial showing of the denial of a constitutional right. 14 Accordingly, it will be recommended that the Court decline to issue 15 a certificate of appealability. 16 VI. Recommendations 17 Based on the foregoing, it is RECOMMENDED that: 18 1) Respondent’s motion to dismiss the petition for lack of 19 subject matter jurisdiction be GRANTED; 20 2) The petition be DISMISSED for lack of subject matter 21 jurisdiction; 22 3) Petitioner’s motion for an evidentiary hearing be 23 DISMISSED as moot; 4) The Court DECLINE to issue a certificate of appealability; 26 5) The Clerk be DIRECTED to close the case. 27 These findings and recommendations are submitted to the United 24 25 and 28 States District Court Judge assigned to the case, pursuant to the 15 1 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 2 Rules of Practice for the United States District Court, Eastern 3 District of California. Within thirty (30) days after being served 4 with a copy, any party may file written objections with the Court 5 and serve a copy on all parties. Such a document should be 6 captioned AObjections to Magistrate Judge=s Findings and 7 Recommendations.@ Replies to the objections shall be served and 8 filed within fourteen (14) days (plus three (3) days if served by 9 mail) after service of the objections. The Court will then review 10 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 11 The parties are advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court=s 13 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 IT IS SO ORDERED. 17 18 Dated: October 16, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 16

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