(HC) Trammell v. State of California

Filing 8

ORDER ADOPTING 6 Findings and Recommendations to Dismiss 2254 Petition, signed by District Judge Dale A. Drozd on 2/2/2021. CASE CLOSED. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

NICHOLAS KENNETH TRAMMELL,

12
13
14
15

Petitioner,
v.
STATE OF CALIFORNIA,

No. 1:20-cv-01448-NONE-JLT (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS § 2254
PETITION
(Doc. Nos. 1, 6)

Respondent.

16
17

Petitioner Nicholas K. Trammell, a state prisoner proceeding in propria persona, has

18

petitioned this federal court for writ of habeas corpus pursuant to 28 U.S.C. § 2254, even though

19

his state petitions for writs of habeas corpus asserting the same claims are still pending in the

20

California Court of Appeal and California Supreme Court. (Doc. No. 1 at 5–6.) Pursuant to 28

21

U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas petition was referred to a

22

United States Magistrate Judge.

23

“A federal court may not grant habeas relief to a state prisoner unless the prisoner has first

24

exhausted his state court remedies.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). Because

25

petitioner has yet to exhaust his state court remedies, the assigned magistrate judge, on October

26

15, 2020, recommended that the instant federal habeas petition be dismissed for lack of

27

jurisdiction. (Doc. No. 6.) Petitioner has not objected to the magistrate judge’s findings and

28

recommendations, and the time to do so has passed.
1

1

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

2

de novo review of the case. The court concludes that the pending findings and recommendations

3

are supported by the record and proper analysis and will adopt the findings and recommendations.

4

In addition, the court declines to issue a certificate of appealability. A petitioner seeking a

5

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

6

and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–

7

36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of appealability only if “reasonable

8

jurists could debate whether (or, for that matter, agree that) the petition should have been resolved

9

in a different manner or that the issues presented were ‘adequate to deserve encouragement to

10

proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463

11

U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not

12

find the court’s determination that the petition should be dismissed debatable or wrong, or that

13

petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate

14

of appealability.

15

Accordingly, the court orders as follows:

16

1.

17

The findings and recommendations (Doc. No. 6), filed October 15, 2020, are
ADOPTED in full;

18

2.

The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED;

19

3.

The court DECLINES to issue a certificate of appealability; and

20

4.

The clerk of court is DIRECTED to assign a district judge to this case for the

21
22
23

purpose of closing the case and then to close the case.
IT IS SO ORDERED.
Dated:

February 2, 2021
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
2