Dustin v. Pffeiffer et al

Filing 37

ORDER ADOPTING 34 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING 25 Motion to Dismiss ; Petition for Writ of Habeas Corpus is Dismissed without prejudice for failure to exhaust his claims for relief in state court prior to seeking federal habeas relief; ORDERED to Decline to Issue a Certificate of Appealability, signed by District Judge Dale A. Drozd on 01/23/18. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DALE OWEN DUSTIN,

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Plaintiff,

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No. 1:16-cv-01708-DAD-SAB

v.
PFFEIFFER,

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Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING
MOTION TO DISMISS, DISMISSING
PETITION, AND DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY
(Doc. Nos. 25, 34)

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. This matter was assigned to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(C) and Local Rule 302.
On November 21, 2017, the magistrate judge issued findings and recommendations

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recommending that respondent’s motion to dismiss be granted and the petition be dismissed

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without prejudice for failure to exhaust state court remedies. (Doc. No. 34.) The findings and

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recommendation were served on petitioner with notice that any objections were to be filed within

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thirty (30) days of the date of service of the order. Petitioner filed objections to the findings and

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recommendations on December 6, 2017, and respondent filed a reply to the objections on

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December 14, 2017. (Doc. Nos. 35, 36.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has

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conducted a de novo review of the case. Having carefully reviewed the entire file, including

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petitioner’s objections, the undersigned concludes the findings and recommendations are

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supported by the record and proper analysis. Nothing in petitioner’s lengthy objections provides

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any cause to doubt the magistrate judge’s analysis.

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Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to

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appeal a district court’s denial of his petition, and an appeal is only allowed in certain

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circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal

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rules governing habeas cases brought by state prisoners require a district court issuing an order

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denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules

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Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the

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applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C.

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§ 2253(c)(2), and the certificate must indicate which issues satisfy this standard. 28 U.S.C.

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§ 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the

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showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that

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reasonable jurists would find the district court’s assessment of the constitutional claims debatable

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or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally, for claims denied on

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procedural grounds, a certificate of appealability should issue “when the prisoner shows, at least,

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that jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Id. Here, petitioner has not made such a showing.

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Accordingly, a certificate of appealability will not be issued.

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Given the above:
1. The findings and recommendations issued November 21, 2017 (Doc. No. 34) are adopted
in full;

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2. Respondent’s motion to dismiss (Doc. No. 25) is granted;

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3. The petition for writ of habeas corpus is dismissed without prejudice for failure to exhaust

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his claims for relief in state court prior to seeking federal habeas relief;
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4. The Clerk of Court is directed to close the case; and

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5. The court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

January 23, 2018
UNITED STATES DISTRICT JUDGE

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