(HC) Johnson v. Cueva

Filing 30

ORDER signed by District Judge Dale A. Drozd on 11/17/22 ADOPTING in full 28 Findings and Recommendations and DISMISSING 1 the petition for writ of habeas corpus. The court DECLINES to issue a certificate of appealability. CASE CLOSED (Kastilahn, A)

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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 BRYON C. JOHNSON, 12 Petitioner, 13 14 No. 2:20-cv-02060-DAD-CKD (HC) v. DANIEL E. CUEVA, 15 Respondent. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING HABEAS PETITION (Doc. No. 28) 16 Petitioner Bryon C. Johnson is a former state prisoner proceeding pro se and in forma 17 18 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On August 23, 2022, the assigned magistrate judge issued findings and recommendations 22 recommending that petitioner’s federal habeas petition be summarily dismissed based on a lack of 23 jurisdiction because “there is no indication that petitioner is being held in state custody based on a 24 ‘violation of the Constitution or laws or treaties of the United States.’” (Doc. No. 28 at 2) 25 (quoting 28 U.S.C. § 2254(a)). Specifically, the findings and recommendations point out that 26 petitioner is seeking an order directing federal authorities to advise the California Department of 27 Corrections and Rehabilitation that a federal hold or warrant, which does not exist, be lifted. (Id. 28 at 1-2.) The pending findings and recommendations were served upon petitioner and contained 1 1 notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2 3.) To date, petitioner has not filed any objections and the time in which to do so has passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 pending findings and recommendations are supported by the record and proper analysis. 6 Having concluded that the pending petition must be dismissed, the court also declines to 7 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 8 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 9 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 10 only issue a certificate of appealability when a petitioner makes a substantial showing of the 11 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 12 relief on procedural grounds without reaching the underlying constitutional claims, the court 13 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 14 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 15 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 17 would not find the court’s determination that the pending petition must be dismissed to be 18 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 19 Accordingly, 20 1. 21 The findings and recommendations issued on August 23, 2022 (Doc. No. 28) are adopted in full; 22 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 23 3. The court declines to issue a certificate of appealability; and 24 4. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. 26 Dated: November 17, 2022 UNITED STATES DISTRICT JUDGE 27 28 2

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