(HC) Johnson v. Superior Court of the State of California for Kings County et al

Filing 14

ORDER ADOPTING 13 Findings and Recommendations; ORDER Dismissing Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Declining to Issue Certificate of Appealability signed by Chief Judge Lawrence J. O'Neill on 12/03/2019. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK L. JOHNSON,

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Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
CASE

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (Doc. No. 13)
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS

v.

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No. 1:19-cv-00976-LJO-JLT (HC)

SCOTT KERNAN, Secretary of California
Department of Corrections and
Rehabilitation, et al.,

ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

Respondents.

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On November 12, 2019, the Magistrate Judge

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assigned to the case issued Findings and Recommendation to dismiss the petition. (Doc. No. 13.)

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This Findings and Recommendation was served upon all parties and contained notice that any

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objections were to be filed within ten days from the date of service of that order. To date, no

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party has filed objections.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a
de novo review of the case. Having carefully reviewed the entire file, the Court concludes that
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the Magistrate Judge’s Findings and Recommendation is supported by the record and proper

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analysis.

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In addition, the Court declines to issue a certificate of appealability. A state prisoner

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seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of

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his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

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U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of

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appealability is 28 U.S.C. § 2253, which provides as follows:

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(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.

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(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).
If a court denies a petitioner’s petition, the court may only issue a certificate of

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appealability when a petitioner makes a substantial showing of the denial of a constitutional right.
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28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that
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“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

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Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
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In the present case, the Court finds that Petitioner has not made the required substantial
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showing of the denial of a constitutional right to justify the issuance of a certificate of
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appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not

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entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

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proceed further. Thus, the Court DECLINES to issue a certificate of appealability.

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Accordingly, the Court orders as follows:

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The Findings and Recommendations, filed November 12, 2019 (Doc. No. 13), is

ADOPTED IN FULL;

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2.

The petition for writ of habeas corpus is DISMISSED;

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3.

The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and,

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4.

The Court DECLINES to issue a certificate of appealability.

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This order terminates the action in its entirety.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 3, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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