Opinion
1:21-cv-00532-AWI-JLT (HC)
09-27-2021
RICHARD SCOTT KINDRED, Petitioner, v. SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT'S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (DOC. NOS. 18 & 21)
Petitioner Richard Scott Kindred is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2021, the magistrate judge assigned to the case issued findings and recommendations to grant Respondent's motion to dismiss. Doc. No. 21. This findings and recommendations were served upon all parties and contained notice that any objections were to be filed within twenty-one days from the date of service of that order. Id. at 4-5. On September 3, 2021, Petitioner filed objections. Doc. No. 22.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the findings and recommendations are supported by the record and by 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). The controlling statute in determining whether to issue a certificate of appealability provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).28 U.S.C. § 2253.
As this statute makes clear, if a court denies a petitioner's habeas petition, the court may only issue a certificate of appealability when the petitioner makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
In this 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 will decline to issue a certificate of appealability. /// ///
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations (Doc. No. 21) that were filed August 12, 2021, are ADOPTED in full;
2. Respondent's motion to dismiss (Doc. No. 18) is GRANTED;
3. The first-amended petition for writ of habeas corpus (Doc. No. 11) is DISMISSED
4. The Clerk of Court shall ENTER judgment and CLOSE the file; and
5. The Court DECLINES to issue a certificate of appealability. This order terminates the action in its entirety.
IT IS SO ORDERED.