(HC) Bellinger v. California Department of Corrections

Opinion

1 2 3 4 5 6 7 10 11 BRIAN JAMES BELLINGER, No. 2:23-cv-01043-DAD-DMC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CORRECTIONS, 15 (Doc. Nos. 8, 9) Respondent. 16

17 18 Petitioner Brian James Bellinger is a state prisoner proceeding pro se with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 21, 2023, the assigned magistrate judge issued findings and recommendations 22 recommending that this federal habeas action be summarily dismissed because petitioner’s first 23 amended petition “does not articulate any cognizable grounds for relief, identify any information 24 concerning state court proceedings, set forth any supporting facts, or state a request for relief.” 25 (Doc. No. 8 at 2.) Indeed, the pending findings and recommendations noted that petitioner 26 answered many questions on the form habeas petition with “n/a” and “no more,” “no more stated, 27 thank you, no more.” (Id. at 1–2.) The pending findings and recommendations were served upon 28 petitioner and contained notice that any objections thereto were to be filed within fourteen (14) 1 days after service. (Id. at 2.) To date, petitioner has not filed any objections and the time in 2 which to do so has passed. 3 On September 5, 2023, petitioner filed a two-sentence document stating, “there’s no need 4 to rant, I need an extension to file another writ another way because of your understanding ability 5 . . . no more ruling me out, thank you, no more.” (Doc. No. 9.) To the extent petitioner’s filing is 6 a motion for an extension of time to file a second amended petition, that motion will be denied 7 because petitioner has not articulated any reason for the court to grant him leave to file a second 8 amended petition nor offered any allegations that he would include in a further amended petition. 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 11 pending findings and recommendations are supported by the record and proper analysis. 12 Having concluded that the pending petition must be dismissed, the court also declines to 13 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 14 right to appeal; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. 15 Cockrell, 537 U.S. 322, 335-36 (2003). If a court denies a petitioner’s petition, the court may 16 only issue a certificate of appealability when a petitioner makes a substantial showing of the 17 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the court denies habeas 18 relief on procedural grounds without reaching the underlying constitutional claims, the court 19 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 20 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 21 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 22 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the court finds that reasonable jurists 23 would not find the court’s determination that the pending petition must be dismissed to be 24 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 25 Accordingly, 26 1. The findings and recommendations issued on August 21, 2023 (Doc. No. 8) are 27 adopted in full; 28 2. The first amended petition for writ of habeas corpus (Doc. No. 5) is dismissed; 1 3, Petitioner’s motion for an extension of time (Doc. No. 9) is denied; 2 4. The court declines to issue a certificate of appealability; and 3 5. The Clerk of the Court is directed to close this case. > | Dated: _ January 30, 2024 Dab A. 2, sxe 5 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28