Reyes v. Allison et al

Filing 14

ORDER Adopting Report and Recommendation of United States Magistrate Judge [Doc. No. 13 ]; Granting Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus [Doc. No. 6 ]; and Declining to Issue a Certificate of Appealability. Signed by Judge Michael M. Anello on 1/10/2022. (All non-registered users served via U.S. Mail Service) (tcf)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

CARLOS REYES,

Case No. 21-cv-0632-MMA (KSC)
Petitioner,

12
13

v.

ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

14

KATHLEEN ALLISON, et al.,

[Doc. No. 13]

15

Respondents.

GRANTING RESPONDENTS’
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS;
AND

16
17

[Doc. No. 6]

18

DECLINING TO ISSUE A
CERTIFICATE OF
APPEALABILITY

19
20
21
22

Petitioner Carlos Reyes (“Petitioner”), a state prisoner proceeding pro se, filed a

23

petition for writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. See Doc.

24

No. 1. On July 15, 2021, Respondents Kathleen Allison and Xavier Becerra

25

(“Respondents”) filed a motion to dismiss for failure to state a claim, to which Petitioner

26

filed a response. See Doc. Nos. 6, 12. The matter was referred to United States

27

Magistrate Judge Karen S. Crawford for preparation of a Report and Recommendation

28

pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2. Judge Crawford issued a
-1-

21-cv-0632-MMA (KSC)

1

thorough and well-reasoned Report recommending that the motion be granted. See Doc.

2

No. 13.

3

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C.

4

§ 636(b)(1), the Court must “make a de novo determination of those portions of the report

5

. . . to which objection is made,” and “may accept, reject, or modify, in whole or in part,

6

the findings or recommendations made by the magistrate [judge].” 28 U.S.C.

7

§ 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

8

Objections to the Report and Recommendation were due no later than December 15,

9

2021. Doc. No. 13 at 7. To date, no objections have been filed, and the time for doing so

10
11

has expired. See Docket.
The Court finds Judge Crawford has issued an accurate Report and well-reasoned

12

recommendation that the motion to dismiss be granted. Accordingly, the Court

13

ADOPTS the Report and Recommendation in its entirety.

14

CERTIFICATE OF APPEALABILITY

15

The federal rules governing habeas cases brought by state prisoners require a

16

district court that dismisses or denies a habeas petition to grant or deny a certificate of

17

appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

18

§ 2254. A certificate of appealability is not issued unless there is “a substantial showing

19

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a

20

petitioner must show that reasonable jurists could debate whether the petition should have

21

been resolved in a different manner or that the issues presented were adequate to deserve

22

encouragement to proceed further. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)

23

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the

24

Report and Recommendation and incorporated herein, the Court finds that this standard

25

has not been met and therefore DECLINES to issue a certificate of appealability.

26
27
28

CONCLUSION
Based on the foregoing, the Court ADOPTS the Report and Recommendation in
its entirety, GRANTS the motion to dismiss, DENIES Petitioner’s request to convert the
-2-

21-cv-0632-MMA (KSC)

1

Petition into a § 1983 complaint, and DISMISSES the Petition without leave to amend.

2

Dismissal is without prejudice to Petitioner filing a § 1983 complaint. The Court further

3

DECLINES to issue a certificate of appealability and DIRECTS the Clerk of Court to

4

enter judgment in favor of Respondents and terminate this case.

5
6

IT IS SO ORDERED.
Dated: January 10, 2022

7

_____________________________

8

HON. MICHAEL M. ANELLO
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

21-cv-0632-MMA (KSC)