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)

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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)

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