(HC) Harris v. Perry
ORDER signed by District Judge Dale A. Drozd on 11/17/2022 ADOPTING the 13 Findings and Recommendations in full. The 1 Petition for Writ of Habeas Corpus is DISMISSED and the court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Spichka, K.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MARK A. HARRIS,
No. 2:21-cv-01854-DAD-AC (HC)
SUZANNE M. PEERY,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
(Doc. No. 13)
Petitioner Mark A. Harris is a state prisoner proceeding pro se with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 30, 2022, the assigned magistrate judge issued findings and recommendations
recommending that petitioner’s federal habeas petition be dismissed for lack of jurisdiction
because “[t]he petition challenges a 2020 prison disciplinary finding” that “does not fall within
the core of habeas corpus.” (Doc. No. 13 at 5.) The pending findings and recommendations were
served upon petitioner and contained notice that any objections thereto were to be filed within
fourteen (14) days after service. (Id.) Although petitioner requested and received two 30-day
extensions of time in which to file objections to the pending findings and recommendations (Doc.
Nos. 14, 15, 16, 18), to date, petitioner has not filed any objections and the time in which to do so
has passed. 1
This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 17.)
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 the
pending findings and recommendations are supported by the record and proper analysis.
Having concluded that the pending petition must be dismissed, the court also declines to
issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute
right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may
only issue a certificate of appealability when a petitioner makes a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas
relief on procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability “if jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists
would not find the court’s determination that the pending petition must be dismissed to be
debatable or wrong. Thus, the court declines to issue a certificate of appealability.
The findings and recommendations issued on June 30, 2022 (Doc. No. 13) are
adopted in full;
The petition for writ of habeas corpus (Doc. No. 1) is dismissed;
The court declines to issue a certificate of appealability; and
The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
November 17, 2022
UNITED STATES DISTRICT JUDGE
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