Wolfe v. Perry

Filing 21

ORDER Adopting Findings and Recommendation, Denying Petition for Writ of Habeas Corpus, Directing Clerk of Court to Close Case, and Declining to Issue Certificate of Appealability, signed by District Judge Dale A. Drozd on 9/14/16. CASE CLOSED. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC THOMAS WOLFE, 12 Petitioner, 13 14 v. S. PERRY, 15 No. 1:15-cv-00957-DAD-SAB-HC ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. No. 17) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 19 pursuant to 28 U.S.C. § 2254. On May 6, 2016, the assigned magistrate judge issued findings and 20 recommendation recommending that the pending petition be denied. (Doc. No. 17.) On July 22, 21 2016, petitioner filed timely objections to the findings and recommendation.1 (Doc. No. 20.) In 22 his objections, petitioner largely repeats arguments previously made in his petition. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 23 24 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 25 1 26 27 28 Although petitioner’s filing was labeled as a traverse, the court construes that filing as objections to the magistrate judge’s findings and recommendation. See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to “create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis”); Bernhardt v. Los Angeles County, 339 F.2d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally). 1 1 objections, the court concludes that the findings and recommendation are supported by the record 2 and proper analysis. 3 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 4 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 5 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 6 petition on the merits, the court may only issue a certificate of appealability “if jurists of reason 7 could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 8 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 9 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 10 petitioner is not required to prove the merits of his case, he must demonstrate “something more 11 than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 12 U.S. at 338. 13 In the present case, the court finds that reasonable jurists would not find the court’s 14 determination that the petition should be denied debatable or wrong, or that the issues presented 15 are deserving of encouragement to proceed further. Petitioner has not made the required 16 substantial showing of the denial of a constitutional right. Therefore, the court declines to issue a 17 certificate of appealability. 18 For the reasons set forth above: 19 1. The findings and recommendation issued May 6, 2016 (Doc. No. 17) are adopted in 20 full; 21 2. The petition for writ of habeas corpus is denied; 22 3. The Clerk of Court is directed to close the case; and 23 4. The court declines to issue a certificate of appealability. 24 25 IT IS SO ORDERED. Dated: September 14, 2016 UNITED STATES DISTRICT JUDGE 26 27 28 2

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