(HC) Fegan v. Schultz

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN FEGAN, No. 1:24-cv-01250-KES-SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 SCHULTZ, et al., TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF 15 Respondents. APPEALABILITY 16 (Doc. 5) 17 18 Petitioner Stephen Fegan is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. This 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 November 8, 2024,1 the assigned magistrate judge issued findings and 22 recommendations that recommended dismissing the petition as an unauthorized successive 23 petition. Doc. 5. On December 2, 2024, petitioner filed timely objections. Doc. 7. In those 24 objections, he asserts that he filed an application for leave to file a second or successive petition 25 with the Ninth Circuit on November 14, 2024, see Doc. 7 at 3, which was after he filed the instant 26 petition and after the magistrate judge issued findings and recommendations, see Docs. 1, 5. 27 Petitioner did not include a case number or a copy of the form that he filed with the Ninth Circuit.

28 1 The findings and recommendations were signed on November 7, 2024, but not docketed until November 8, 2024. 1 See Doc. 7. 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 3 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 4 Court holds the findings and recommendations to be supported by the record and proper analysis. 5 AEDPA requires a petitioner to seek leave from the court of appeals “[b]efore a second or 6 successive application may be filed.” 28 U.S.C. § 2244(b)(3)(A) (emphasis added). “When [] 7 AEDPA is in play, the district court may not, in the absence of proper authorization from the 8 court of appeals, consider a second or successive habeas application.” Cooper v. Calderon, 274 9 F.3d 1270, 1274 (9th Cir. 2001) (quoting Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir. 1999)). 10 This Court lacks jurisdiction, and the petition must be dismissed. See id. 11 Having found that petitioner is not entitled to habeas relief, the Court now turns to 12 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 13 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 14 allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 15 U.S.C. § 2253. Where, as here, the Court denies habeas relief on procedural grounds without 16 reaching the underlying constitutional claims, the Court should issue a certificate of appealability 17 “if jurists of reason would find it debatable whether the petition states a valid claim of the denial 18 of a constitutional right and that jurists of reason would find it debatable whether the district court 19 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a 20 plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a 21 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 22 that the petitioner should be allowed to proceed further.” Id. 23 In the present case, the Court finds that reasonable jurists would not find the Court’s 24 determination that the petition should be dismissed debatable or wrong, or that petitioner should 25 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 26 / / / 27 / / / 28 / / / 1 Accordingly: 2 1. The findings and recommendations issued on November 8, 2024, Doc. 5, are 3 ADOPTED in full; 4 2. The petition for writ of habeas corpus is DISMISSED; 5 3. The Clerk of Court is directed to close the case; and 6 4. The Court declines to issue a certificate of appealability. 7 8 g | SO ORDERED. _ 10 Dated: _ December 19, 2024 4h UNITED STATES DISTRICT JUDGE

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