Opinion
1:12-cv-01333-NONE-SKO(HC)
09-22-2021
JESSE PRITCHETT, Petitioner, v. STEPHANIE CLENDENIN, Executive Director, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. DENYING PETITION FOR WRIT OF HABEAS CORPUS DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE AND THEN CLOSE CASE. AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
(Doc. No. 33)
Petitioner Jesse Prichett is committed pursuant to the Sexual Violent Predator Act and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 10, 2021, the assigned magistrate judge issued findings and recommendations recommending that the petition be denied on its merits. (Doc. No. 33.) Those findings and recommendations were served upon all parties and contained notice that any objections thereto were to be filed within thirty (30) days after service. No. objections have been filed, and the deadline to do so has expired. The court also notes that the U.S. Postal Service returned the findings and recommendations, which were served on petitioner at his address of record, to the court on August 23, 2021, stamped as "undeliverable - unable to forward."
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 magistrate judge's findings and recommendations are 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, 335-336 (2003); 28 U.S.C. § 2253. If a court denies a petitioner's petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 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 (1983)).
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. Therefore, the court declines to issue a certificate of appealability.
Accordingly,
1. The findings and recommendations issued on August 10, 2021, (Doc. No. 33), are adopted in full;
2. The petition for writ of habeas corpus is denied with prejudice;
3. The Clerk of the Court is directed to assign a district judge to this case for the purpose of closing the case and then to close this case; and
4. The court declines to issue a certificate of appealability.
IT IS SO ORDERED.