(HC) Blackmon v. Pfeiffer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TED BLACKMON, ) Case No.: 1:23-cv-00497-KES-HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS, DENYING 13 v. ) PETITIONER’S MOTION TO STAY, ) GRANTING RESPONDENT’S MOTION TO 14 CHRISTIAN PFEIFFER, ) DISMISS, DENYING PETITION FOR WRIT OF ) HABEAS CORPUS, DECLINING TO ISSUE 15 Respondent. ) CERTIFICATE OF APPEALABILITY, AND ) DIRECTING CLERK OF COURT TO CLOSE 16 ) CASE ) 17 ) (Docs. 1, 12, 18, 19, 22) ) 18 Petitioner Ted Blackmon is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. 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 May 17, 2024, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s motion to dismiss be granted, and the petition be dismissed for 23 failure to state a cognizable federal habeas claim. Doc. 18. Those findings and recommendations 24 were served upon all parties and contained notice that any objections thereto were to be filed 25 within fourteen (14) days after service. In addition, the parties were “advised that failure to file 26 objections within the specified time may result in the waiver of rights on appeal.” Id., citing 27 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 28 1 1394 (9th Cir. 1991). Petitioner did not file objections, and the deadline to do so has expired. 2 However, in response petitioner filed a motion stay. Doc. 19. Respondent filed an opposition to 3 the motion to stay, and petitioner filed a response. Docs. 20, 21. 4 On July 3, 2024, the assigned magistrate judge issued findings and recommendations 5 recommending that petitioner’s motion to stay be denied. Doc. 22. Those findings and 6 recommendations were served upon all parties and contained notice that any objections thereto 7 were to be filed within fourteen (14) days after service. In addition, the parties were “advised that 8 failure to file objections within the specified time may result in the waiver of rights on appeal.” 9 Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 10 F.2d 1391, 1394 (9th Cir. 1991). Petitioner did not file objections, and the deadline to do so has 11 expired. 12 In accordance with the provisions of 28 U.S.C. § 636 (b)(1), the court has conducted a de 13 novo review of the case. Having carefully reviewed the file, the court concludes that the 14 magistrate judge’s findings and recommendations are supported by the record and proper 15 analysis. 16 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 17 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 18 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 19 petition on the merits, the court may issue a certificate of appealability only “if jurists of reason 20 could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 21 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 22 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 23 petitioner is not required to prove the merits of his case, he must demonstrate “something more 24 than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 25 U.S. at 338. 26 The court finds that reasonable jurists would not find the court’s determination that the 27 petition should be denied debatable, wrong, or deserving of encouragement to proceed further. 28 Petitioner has not made the required substantial showing of the denial of a constitutional right. 1 | Therefore, the court declines to issue a certificate of appealability. 2 Accordingly: 3 1. The findings and recommendations issued on May 17, 2024, Doc. 18, are 4 ADOPTED in full; 5 2. The findings and recommendations issued on July 3, 2024, Doc. 22, are 6 ADOPTED in full; 7 3. Petitioner’s motion to stay, Doc. 19, is DENIED; 8 4. Respondent’s motion to dismiss, Doc. 12, is GRANTED; 9 5. The petition for writ of habeas corpus, Doc. 1, is DENIED; 10 6. The court declines to issue a certificate of appealability; 11 7. The Clerk of the Court is directed to terminate any pending deadlines/motions and 12 CLOSE the case. 13 14 15 | IT IS SO ORDERED. _ : 16 Dated: _ August 8, 2024 4A UNITED STATES DISTRICT JUDGE

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