(HC) Page v. Fisher

Filing 8

ORDER ADOPTING 5 Findings and Recommendations, Dismissing 1 Petition for Writ of Habeas Corpus, Directing Clerk of Court to Assign District Judge and Close Case, and Declining to Issue Certificate of Appealability, signed by District Judge Dale A. Drozd on 07/14/2021. CASE CLOSED. (Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ALAN PAGE, 12 Petitioner, 13 14 v. 15 16 17 18 No. 1:21-cv-00749-NONE-SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Doc. Nos. 1, 5) RAYTHEL FISHER, JR., Warden, Respondent. 19 20 Petitioner Jason Alan Page is a state prisoner proceeding pro se and in forma pauperis 21 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and challenging the 22 decision of the California Board of Parole Hearings (the “Board”) denying parole. (Doc. No. 1.) 23 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 24 636(b)(1)(B) and Local Rule 302. 25 On May 12, 2021, the assigned magistrate judge issued findings and recommendations 26 recommending that the petition be dismissed for lack of jurisdiction. (Doc. No. 5.) Those 27 findings and recommendations were served upon all parties and contained notice that any 28 objections thereto were to be filed within twenty-one (21) days after service. (Id. at 3.) 1 1 On May 28, 2021, petitioner filed objections to the findings and recommendations. (Doc. 2 No. 7.) He continues to assert that the Board violated his due process rights by finding him 3 unsuitable for parole and asks the court to release him from prison. (Id. at 2.) As explained in the 4 pending findings and recommendations, however, federal habeas review of a prisoner’s denial of 5 parole is limited to procedural due process guarantees only, i.e., whether the prisoner “was 6 allowed an opportunity to be heard and was provided a statement of reasons why parole was 7 denied.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (citation omitted). Petitioner does not 8 raise such challenges here and thus his petition must be dismissed. 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 11 objections, the court concludes that the magistrate judge’s findings and recommendations are 12 supported by the record and proper analysis. 13 In addition, the court declines to issue a certificate of appealability. A state prisoner 14 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 15 his petition, and an appeal is only allowed in certain circumstances. 28 U.S.C. § 2253; Miller-El 16 v. Cockrell, 537 U.S. 322, 335–36 (2003). If a court denies a petitioner’s petition, the court may 17 only issue a certificate of appealability when a petitioner makes a substantial showing of the 18 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the 19 petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree 20 that) the petition should have been resolved in a different manner or that the issues presented 21 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 22 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 23 In the present case, the court finds that petitioner has not made the required substantial 24 showing of the denial of a constitutional right to justify the issuance of a certificate of 25 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 26 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 27 proceed further. Thus, the court declines to issue a certificate of appealability. 28 ///// 2 1 Accordingly, 2 1. 3 The findings and recommendations issued on May 12, 2021, (Doc. No. 5), are adopted in full; 4 2. The petition for writ of habeas corpus, (Doc. No. 1), is dismissed with prejudice; 5 3. The clerk of court is directed to assign a district judge to this case for the purpose 6 7 8 9 10 of closing the case and then to close the case; and 4. The court declines to issue a certificate of appealability. IT IS SO ORDERED. Dated: July 14, 2021 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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