Opinion
No. 1:19-cv-00747-DAD-JDP (HC)
12-02-2019
KENNETH ROSHAUN REID, Petitioner, v. WARDEN S. LAKE, Respondent.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(Doc. No. 7)
Petitioner Kenneth Roshaun Reid is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On September 26, 2019, the assigned magistrate judge issued findings and recommendations recommending that the pending petition be dismissed as frivolous and for lack of jurisdiction because petitioner does not claim his actual innocence and because he previously had an unobstructed procedural shot to assert his habeas claims. (Doc. No. 7.) The findings and recommendations were served on petitioner and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.) To date, petitioner has not filed objections, and the time period for doing so has passed. /////
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and proper analysis.
In addition, a 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); 28 U.S.C. § 2253. Rule 11 Governing Section 2254 Cases requires that a district court issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the court will issue a certificate of appealability "if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists would not find the court's decision debatable or conclude that the petition should proceed further. Thus, the court declines to issue a certificate of appealability.
Accordingly,
1. The findings and recommendations issued on September 26, 2019 (Doc. No. 7) are adopted in full;IT IS SO ORDERED.
2. This petition for writ of habeas corpus is dismissed as frivolous and for lack of jurisdiction; and
3. The Clerk of the Court is directed to close this case.
Dated: December 2 , 2019
/s/_________
UNITED STATES DISTRICT JUDGE