(HC) Jackson v. Neuschmid

Filing 23

ORDER ADOPTING 20 Findings and Recommendations, GRANTING Respondent's 12 Motion to Dismiss, DISMISSING Petition for Writ of Habeas Corpus without Prejudice, DIRECTING Clerk of Court to CLOSE CASE, and DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY signed by Chief Judge Lawrence J. O'Neill on 10/8/2019. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 KENNETH A. JACKSON, 11 Case No. 1:19-cv-00357-LJO-SAB-HC Petitioner, 16 ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 17 (ECF Nos. 12, 20) 12 v. 13 ROBERT NEUSCHMID, 14 Respondent. 15 Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 18 19 U.S.C. § 2254. On August 20, 2019,1 the Magistrate Judge issued Findings and Recommendation 20 that recommended granting Respondent’s motion to dismiss and dismissing the petition without 21 prejudice based on Younger v. Harris, 401 U.S. 37 (1971). (ECF No. 20). Petitioner filed timely 22 objections. (ECF No. 22). In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 23 24 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 25 objections, the Court concludes that the Findings and Recommendation is supported by the 26 record and proper analysis, and there is no need to modify the Findings and Recommendation. 27 1 The Findings and Recommendation was signed on August 19, 2019, but it was not entered on the docket until 28 August 20, 2019. 1 1 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 2 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 3 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining 4 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (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). A court should issue a certificate of appealability if “reasonable jurists could debate 21 whether (or, for that matter, agree that) the petition should have been resolved in a different 22 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 23 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 24 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find 25 the Court’s determination that Petitioner’s federal habeas corpus petition should be dismissed 26 debatable or wrong, or that the issues presented are deserving of encouragement to proceed 27 further. Therefore, the Court declines to issue a certificate of appealability. 28 /// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendation issued on August 20, 2019 (ECF No. 20) is ADOPTED; 3 4 2. Respondent’s motion to dismiss (ECF No. 12) is GRANTED; 5 3. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE pursuant to Younger v. Harris, 401 U.S. 37 (1971); 6 7 4. The Clerk of Court is DIRECTED to CLOSE the case; and 8 5. The Court DECLINES to issue a certificate of appealability. 9 10 11 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ October 8, 2019 UNITED STATES CHIEF DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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