Opinion
No. 1:17-cv-01156-NONE-SKO (HC)
07-07-2020
RICHARD C. ACORD, Petitioner, v. THE STATE OF CALIFORNIA, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION, DIRECTING THE CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND THEN ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
(Doc. No. 9)
Petitioner is a state prisoner proceeding in propria persona and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2020, the assigned magistrate judge issued findings and recommendation recommending that the pending petition be dismissed due to petitioner's failure to state a cognizable claim for federal habeas relief as well as other reasons. (Doc. No. 9.) The findings and recommendation were served upon all parties and contained notice that any objections were to be filed within twenty-one (21) days from the date of service of that order. To date, no party has filed objections. However, the court notes that the findings and recommendations served on petitioner were returned by the U.S. Postal Service on April 14, 2020, as "undeliverable - unable to forward." Pursuant to Local Rule 183(b), plaintiff was required to notify the court and opposing parties of any change of address within sixty-three (63) days. That time period has now expired, and the court has not received any communication from petitioner.
The court also takes judicial notice of the docket in Acord v. State of California, et al., No. 1:20-cv-0046-NONE-JDP, which reflects that a June 22, 2020, court order was also returned as undeliverable because petitioner is no longer in custody. --------
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 findings and recommendation is supported by the record and proper analysis.
In addition, the court declines to issue a certificate of appealability. 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). Specifically, the federal rules governing habeas cases brought by state prisoners require a district court issuing an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing. Accordingly, a certificate of appealability will not be issued.
In the present case, the court finds that petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the court's determination that petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the court DECLINES to issue a certificate of appealability. /////
Accordingly, the court orders as follows:
1. The findings and recommendations, filed April 2, 2020 (Doc. No. 9), are ADOPTED IN FULL;
2. The petition for writ of habeas corpus is DISMISSED;
3. The Clerk of Court is directed to assign a district judge to this case for the purpose of closing the case and then to ENTER JUDGMENT AND CLOSE THE CASE; and,
4. The court DECLINES to issue a certificate of appealability.
This order terminates the action in its entirety. IT IS SO ORDERED.
Dated: July 7 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE