Opinion
No. 1:20-cv-00472-NONE-SAB-HC
07-16-2020
ANTHONY E. MYERS, Petitioner, v. FRESNO POLICE DEPARTMENT, et al., Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
(Doc. No. 9)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In the pending habeas petition, petitioner raises a speedy trial claim with respect to his ongoing Fresno County criminal proceeding. (Id. at 2-3.) Petitioner also alleges that he was unlawfully arrested, subject to assault and sexual assault while detained, had his legal documents confiscated, and was denied penicillin. (Id. at 4, 12, 17, 19). On May 13, 2020, the assigned magistrate judge issued findings and recommendations recommending that the petition be dismissed without prejudice because petitioner's speedy trial allegations were barred by Younger v. Harris, 401 U.S. 37 (1971), and the remaining allegations did not state cognizable claims for federal habeas corpus relief. (Doc. No. 9.) The findings and recommendations were served on Petitioner and contained notice that any objections were to be filed within thirty (30) days of the date of service of the findings and recommendation. On May 18, 2020, the court received a document, which the court construes as objections to the findings and recommendations. See Bernhardt v. Los Angeles County, 339 F.3d 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 holds the findings and recommendations to be supported by the record and proper analysis. The magistrate judge's reasoning set forth in the findings and recommendations is sound, and petitioner's objections fail to address that reasoning in any material way.
The court notes that after the time for filing objections passed, the court received two letters from petitioner. Attached to the first letter is a petition for writ of habeas corpus that appears to be nearly identical to the petition that commenced this proceeding along with an incomplete copy of a Fresno County Superior Court order denying state habeas relief. (Doc. No. 11.) Attached to the second letter is a prisoner civil rights complaint that appears to be nearly identical to the complaint previously filed by petitioner that commenced the proceeding in Myers v. Fresno County Jail, No. 1:20-cv-00381-AWI-EPG, along with copies various orders from this court and the Fresno County Superior Court. (Doc. No. 12.) These letters and attachments do not affect the court's conclusion that the instant petition should be dismissed without prejudice pursuant to Younger v. Harris, 401 U.S. 37 (1971), and for failure to state cognizable federal habeas claims. --------
Having found that petitioner is not entitled to habeas relief, the court now turns to whether a certificate of appealability should issue. A petitioner 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. The court should issue a certificate of appealability if "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 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 recommendation issued on May 13, 2020 (Doc. No. 9) are adopted;IT IS SO ORDERED.
2. The petition for writ of habeas corpus is dismissed without prejudice;
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 close the case; and
4. The court declines to issue a certificate of appealability.
Dated: July 16 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE