(HC) Bisel v. Fisher

Filing 28

ORDER ADOPTING 26 Findings and Recommendations; ORDER GRANTING 12 Respondent's Motion to Dismiss; and ORDER DECLINING to Issue a Certificate of Appealability signed by District Judge Anthony W. Ishii on 9/14/2022. CASE CLOSED. (Lawrence, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GREGORY EUGENE BISEL, 11 12 13 Petitioner, v. RAY FISHER, JR., 14 Respondent. 15 CASE NO. 1:21-cv-01071-AWI-HBK (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE (Doc. Nos. 12, 26) 16 17 Petitioner Gregory Eugene Bisel is a state probationer proceeding in propria persona with 18 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. On October 7, 19 2021, Respondent filed a motion to dismiss the petition for failing to state a cognizable claim for 20 federal habeas relief. Doc. No. 12. On June 29, 2022, the magistrate judge assigned to the case 21 issued findings and recommendations to grant Respondent’s motion to dismiss the petition. Doc. 22 No. 26. These findings and recommendations were served on all parties and contained notice that 23 any objections were to be filed within fourteen days from the date of service of that order. To 24 date, no objections have been filed. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 27 the magistrate judge’s findings and recommendations are supported by the record and proper 28 analysis. 1 1 In addition, the Court declines to issue a certificate of appealability. A state prisoner 2 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 3 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 4 U.S. 322, 335–36 (2003). The controlling statute in determining whether to issue a certificate of 5 appealability is 28 U.S.C. § 2253, which provides as follows: 6 7 8 (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. 10 (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. 11 (c) 9 12 13 14 15 16 17 18 19 20 (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 21 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 22 § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable 23 jurists could debate whether (or, for that matter, agree that) the petition should have been resolved 24 25 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 Barefoot v. Estelle, 463 26 U.S. 880, 893 & n.4 (1983)). 27 In the present case, the Court finds that Petitioner has not made the required substantial 28 2 1 showing of the denial of a constitutional right to justify the issuance of a certificate of 2 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 3 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 4 proceed further. Thus, the Court will decline to issue a certificate of appealability. 5 ORDER 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. 8 The findings and recommendations (Doc. No. 26) issued on June 29, 2022, are ADOPTED in full; 9 2. Respondent’s motion to dismiss (Doc. No. 12) is GRANTED. 10 3. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 11 4. The Clerk of Court shall ENTER judgment and CLOSE the file; and 12 5. The Court DECLINES to issue a certificate of appealability. 13 14 15 IT IS SO ORDERED. Dated: September 14, 2022 SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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