Opinion
No. 1:20-cv-01769-NONE-SKO (HC)
02-12-2021
CECIL DEWITT NELSON, Petitioner, v. A. CIOLLI, Warden, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS § 2241 PETITION
(Doc. No. 5)
Petitioner Cecil D. Nelson is a state prisoner proceeding in propria persona in this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas petition was referred to a United States Magistrate Judge. On December 18, 2020, the assigned magistrate judge issued findings and recommendations, recommending that the petition be dismissed as duplicative and for lack of jurisdiction. (Doc. No. 5.) Those findings and recommendations were properly served on all parties, but no objections have been filed.
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. The court concludes that the pending findings and recommendations are supported by the record and proper analysis and will adopt them.
In addition, the court declines to issue a certificate of appealability. 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. Courts should issue a certificate of appealability only 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.
For the foregoing reasons, the court ORDERS as follows:
1. The findings and recommendations issued on December 18, 2020 (Doc. No. 5) are ADOPTED in full;IT IS SO ORDERED.
2. The petition for writ of habeas corpus is DISMISSED;
3. The court DECLINES to issue a certificate of appealability; and
4. 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.
Dated: February 12 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE