(HC) Beavers v. Kettering

Opinion

EDDIE DUPREE BEAVERS , No. 1:19-cv-00521-DAD-JDP (HC) Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 8) Respondent.

Petitioner Eddie Dupree Beavers, who is presently on probation, seeks the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. He is proceeding in this action without counsel and on his own behalf. (Doc. No. 1.) 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 25, 2019, the assigned magistrate judge issued findings and recommendations recommending that because the allegations of the petition established that petitioner was currently in the process of challenging his underlying conviction in the state courts (Doc. No. 1 at 5), this court should abstain from exercising jurisdiction over this habeas action and dismiss the pending petition without prejudice.1 (Doc. No. 8.) The findings and recommendations were served on petitioner and contained notice that any objections thereto were 1 The findings and recommendations do not mention a failure to first exhaust claims in state court despite the alleged pendency of a state habeas petition before the California Court of Appeal. to be filed within fourteen days after service. (/d. at 3.) To date, petitioner has not filed objections, and the time 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. 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-El v. 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). 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 25, 2019 (Doc. No. 8) are adopted in full; 2. This petition for writ of habeas corpus is dismissed without prejudice; 3. The court declines to issue a certificate of appealability; and 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. me □ Li fa £5 Dated: _ January 16, 2020 See 1" Sage UNITED STATES DISTRICT JUDGE