Opinion
No. 1:15-cv-00957-DAD-SAB-HC
09-14-2016
ERIC THOMAS WOLFE, Petitioner, v. S. PERRY, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
(Doc. No. 17)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 6, 2016, the assigned magistrate judge issued findings and recommendation recommending that the pending petition be denied. (Doc. No. 17.) On July 22, 2016, petitioner filed timely objections to the findings and recommendation. (Doc. No. 20.) In his objections, petitioner largely repeats arguments previously made in his petition.
Although petitioner's filing was labeled as a traverse, the court construes that filing as objections to the magistrate judge's findings and recommendation. See Castro v. United States, 540 U.S. 375, 381-82 (2003) (courts may recharacterize a pro se motion to "create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis"); Bernhardt v. Los Angeles County, 339 F.2d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions liberally). --------
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, including petitioner's objections, the court concludes that the findings and recommendation are supported by the record and proper analysis.
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-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338.
In the present case, the court finds that reasonable jurists would not find the court's determination that the petition should be denied debatable or wrong, or that the issues presented are deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Therefore, the court declines to issue a certificate of appealability.
For the reasons set forth above:
1. The findings and recommendation issued May 6, 2016 (Doc. No. 17) are adopted in full;IT IS SO ORDERED. Dated: September 14 , 2016
2. The petition for writ of habeas corpus is denied;
3. The Clerk of Court is directed to close the case; and
4. The court declines to issue a certificate of appealability.
/s/_________
UNITED STATES DISTRICT JUDGE