Opinion
22-cv-395-MMA (DEB)
09-20-2022
TERRY RAY HORNBECK, Petitioner, v. CALIPATRIA STATE PRISON, Respondent.
ORDER DIRECTING ENTRY OF FINAL JUDGMENT OF DISMISSAL WITOUT PREJUDICE, CLOSING CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Hon. Michael M. Anello, United States District Judge
On March 24, 2022, Terry Ray Hornbeck (“Petitioner”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with an inmate trust account statement, which the Court construed as a motion to proceed in forma pauperis (“IFP”). See Doc. Nos. 1-2. On April 12, 2022, the Court issued an order granting Petitioner's motion to proceed IFP and dismissing the Petition without prejudice for failure to name a proper defendant and for failure to state a cognizable claim on habeas corpus because Petitioner appeared to only challenge the conditions of his prison life. Doc. No. 4 (the “Dismissal Order”). In the Dismissal Order, the Court directed Petitioner, should he wish to proceed with this habeas action, to file a First Amended Petition curing the pleading deficiencies on or before June 20, 2022. Id. at 3.
Three months have elapsed since the June 20, 2022, deadline and Petitioner has not filed a First Amended Petition in compliance with the Court's Dismissal Order. Therefore, the Court DIRECTS the Clerk to enter a final judgment of dismissal without prejudice in accordance with the Court's April 12, 2022 Order and to close the case.
Because the Court is entering a final order adverse to Petitioner, the Court is required to issue or deny a certificate of appealability. See Rule 11, 28 U.S.C. foil. § 2254; see also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the absence of frivolity or the existence of mere good faith.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Reasonable jurists would not disagree with the Court's conclusion or find that this case should proceed further. Therefore, the Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.