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Turner v. Covello

United States District Court, Eastern District of California
Nov 10, 2022
2:21-cv-01328-DAD-DMC (HC) (E.D. Cal. Nov. 10, 2022)

Opinion

2:21-cv-01328-DAD-DMC (HC)

11-10-2022

ANTHONY DEWAYNE LEE TURNER, Petitioner, v. PATRICK COVELLO, Respondent.


ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING RESPONDENT'S MOTION TO DISMISS

(DOC. NOS. 15, 32)

Petitioner Anthony Dewayne Lee Turner is a former state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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 August 1, 2022, the assigned magistrate judge issued findings and recommendations recommending that respondent's motion to dismiss (Doc. No. 15) be granted because: (1) petitioner is not in custody and was not in custody when he filed the petition; (2) the pending federal habeas petition is untimely because it challenges a state court judgment entered in 1996 and petitioner has not established that he is entitled to equitable tolling of the applicable statute of limitations; and (3) petitioner did not exhaust his claims by first presenting them to the highest state court prior to seeking federal habeas relief. (Doc. No. 32 at 3-6.) Those findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within fourteen (14) days from the date of service. (Id. at 5.) On August 15, 2022, petitioner filed objections to the pending findings and recommendations. (Doc. No. 33.) Respondent did not file objections of his own or a response to petitioner's objections.

This case was reassigned to the undersigned district judge on August 25, 2022. (Doc. No. 34.)

In his objections, petitioner does not meaningfully address the analysis in the findings and recommendations or contest that he is no longer in custody. Rather, petitioner reiterates his arguments on the merits of his untimely, unexhausted federal habeas petition. (Doc. No. 33.) Accordingly, petitioner's objections provide no basis upon which to reject the pending findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including petitioner's objections, the court finds the findings and recommendations to be supported by the record and proper analysis. Accordingly, respondent's motion to dismiss the pending petition will be granted.

Additionally, the court declines to issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-Elv. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 of the Rules 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). 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). Here, reasonable jurists would not find the court's decision to dismiss the petition to be 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 August 1, 2022 (Doc. No. 32) are adopted in full;

2. Respondent's motion to dismiss the pending petition (Doc. No. 15) is granted;

3. The amended petition for writ of habeas corpus (Doc. No. 8) is dismissed;

4. Petitioner's pending motions (Doc. Nos. 21, 25) are denied as having been rendered moot by this order and are denied on that basis;

5. The court declines to issue a certificate of appealability; and

6. The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.


Summaries of

Turner v. Covello

United States District Court, Eastern District of California
Nov 10, 2022
2:21-cv-01328-DAD-DMC (HC) (E.D. Cal. Nov. 10, 2022)
Case details for

Turner v. Covello

Case Details

Full title:ANTHONY DEWAYNE LEE TURNER, Petitioner, v. PATRICK COVELLO, Respondent.

Court:United States District Court, Eastern District of California

Date published: Nov 10, 2022

Citations

2:21-cv-01328-DAD-DMC (HC) (E.D. Cal. Nov. 10, 2022)