Opinion
2:21-cv-01833-DAD-CKD (HC)
09-06-2022
ELIJAH RICHTER, Petitioner, v. PAUL THOMPSON, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
(Doc. No. 10)
Petitioner Elijah Richter is a federal prisoner proceeding pro se in this 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 May 3, 2022, the assigned magistrate judge issued findings and recommendations, recommending that the action be dismissed due to petitioner's failure to prosecute and failure to comply with a court order. (Doc. No. 10.) The findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within fourteen (14) days of service. (Id. at 1-2.) No objections have been filed and the time to do so has since passed. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, court finds the findings and recommendations to be supported by the record and proper analysis.
In addition, having concluded that the pending petition must be dismissed, the court now turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-Elv. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. 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 petition should be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability.
Accordingly,
1. The findings and recommendations issued on May 3, 2022 (Doc. No. 10) are adopted in full;
2. This action is dismissed without prejudice;
3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and
4. The Clerk of Court is directed to close this action.
IT IS SO ORDERED.