(HC) Craig v. D'Agostini

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHN CRAIG, No. 2:21-cv-01198-DAD-DMC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 14 JOHN D’AGOSTINI, RESPONDENT’S MOTION TO DISMISS, AND DISMISSING HABEAS PETITION 15 Respondent. WITHOUT PREJUDICE 16 (Doc. Nos. 27, 31) 17 18 Petitioner Norman John Craig is a state prisoner proceeding pro se and in forma pauperis 19 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 20 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 15, 2023, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s unopposed motion to dismiss petitioner’s first amended petition 23 (Doc. No. 27) be granted because petitioner’s underlying state criminal proceedings are still 24 pending. (Doc. No. 31.) Thus, application of the Younger abstention doctrine requires dismissal 25 of this federal habeas action without prejudice. See Younger v. Harris, 401 U.S. 37 (1971). The 26 pending findings and recommendations were served on all parties and contained notice that any 27 ///// 28 ///// 1 objections thereto were to be filed within fourteen (14) days from the date of service. (Id. at 7– 2 8.)1 To date, no objections have been filed and the time in which to do so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 court finds the findings and recommendations to be supported by the record and proper analysis. 6 Accordingly, respondent’s motion to dismiss the pending petition will be granted. 7 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 8 writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 9 circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 10 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 11 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 12 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 13 issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 14 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 16 U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 17 petition to be debatable or conclude that the petition should proceed further. Thus, the court 18 declines to issue a certificate of appealability. 19 Accordingly, 20 1. The findings and recommendations issued on June 15, 2023 (Doc. No. 31) are 21 adopted in full; 22 2. Respondent’s motion to dismiss the pending petition (Doc. No. 27) is granted; 23 3. The first amended petition for writ of habeas corpus (Doc. No. 5) is dismissed, 24 without prejudice; 25

1 The service copy of the findings and recommendations was mailed to petitioner at his address 26 of record on June 15, 2023, and that copy was returned to the court marked as “Undeliverable, No 27 longer at this address.” The court re-served a copy of the findings and recommendations on petitioner at his updated address of record, and that service copy was also returned to the court 28 marked as “Undeliverable, return to sender; not deliverable as addressed.” 1 4. The court declines to issue a certificate of appealability; and 2 5. The Clerk of the Court is directed to close this case. 3 IT IS SO ORDERED. * | Dated: August 7, 2023 Dab A. 2, pel 5 UNITED STATES DISTRICY JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28