Thomas v. People of the State of California

Filing 9

FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the Petition in this action without prejudice for failure to obey a Court Order and Decline to Issue a Certificate of Appealability re 1 Petition for Writ of Habeas Corpus filed by Deontray Thomas ; referred to Judge Drozd; new case number is 1:17-cv-1546 DAD-SKO (HC), signed by Magistrate Judge Sheila K. Oberto on 01/9/18. Objections to F&R due by 2/12/2018 (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DEONTRAY THOMAS, 11 12 13 14 15 Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent. No. 1:17-cv-01546-SKO HC FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF PETITIONER FOR FAILURE TO OBEY A COURT ORDER COURT CLERK TO ASSIGN DISTRICT JUDGE (Doc. 1) 16 17 18 On November 13, 2017, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the 19 20 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Upon review of the petition, the Court discovered that Petitioner (1) did not name an appropriate Respondent; 22 (2) alleged violations based on California state law, rather than alleging violations of his 23 constitutional rights; and (3) did not clearly set forth whether he exhausted his claims. 24 25 26 On December 5, 2017, the Court ordered Petitioner to file an amended complaint within 30 days. Although more than 30 days have passed, Petitioner has neither filed an amended complaint, nor responded to the Court’s order in any way. 27 28 1 1 The Court has the discretion to impose any and all sanctions authorized by statute or rule 2 or within the inherent power of the Court, including dismissal of an action based on Petitioner’s 3 failure to comply with a court order. Fed .R. Civ. P. 11; Local R. 110. 4 Certificate of Appealability 5 6 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 7 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 8 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 9 certificate of appealability is 28 U.S.C. § 2253, which provides: 10 11 (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. 12 15 (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. 16 (c) 13 14 17 18 19 (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 20 21 22 23 24 25 26 (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 issues or issues satisfy the showing required by paragraph (2). If a court denies a habeas petition, the court may only issue a certificate of appealability 27 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 28 2 1 or that jurists could conclude the issues presented are adequate to deserve encouragement to 2 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). 3 Although the petitioner is not required to prove the merits of his case, he must demonstrate 4 "something more than the absence of frivolity or the existence of mere good faith on his . . . 5 6 part." Miller-El, 537 U.S. at 338. 7 In the present case, the Court finds that reasonable jurists would not find the Court's 8 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 9 deserving of encouragement to proceed further. Accordingly, the Court recommends declining to 10 issue a certificate of appealability. 11 Recommendation 12 13 14 15 Based on the foregoing, the undersigned hereby recommends that the Court dismiss the petition in this action without prejudice for failure to obey a court order and decline to issue a certificate of appealability. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 18 19 (30) days after being served with these Findings and Recommendations, either party may file written objections with the Court. The document should be captioned AObjections to Magistrate 20 21 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 22 filed within fourteen (14) days after service of the objections. The parties are advised that failure 23 to file objections within the specified time may constitute waiver of the right to appeal the District 24 Court's order. 25 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. The Court Clerk is hereby directed to assign a district judge to this action. 27 28 IT IS SO ORDERED. 3 1 2 Dated: January 9, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 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 4 .

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