(HC) Gray v. Asuncion

Opinion

THOMAS EUGENE GRAY, No. 1:21-cv-00595-DAD-JLT (HC) Petitioner, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING RAYBON JOHNSON, Warden, RESPONDENT’S MOTION TO DISMISS Respondent. (Doc. Nos. 13, 18) Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 16, 2021, the assigned magistrate judge issued findings and recommendations recommending that respondent’s motion to dismiss be granted. (Doc. No. 18.) The magistrate judge found that petitioner had filed his pending petition outside of the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that petitioner was not entitled to either statutory or equitable tolling of the statute of limitations, and that petitioner failed to state a cognizable federal claim because federal habeas relief is not available to state prisoners challenging state law. (Id. at 4–6.) These findings and recommendations were served upon all parties and contained notice that any objections were to be filed within twenty- one days from the date of service of that order. (Id. at 6.) To date, no party has filed objections and the time to do so has since passed. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the magistrate judge’s findings and recommendations are supported by the record and proper analysis. Having determined that petitioner is not entitled to habeas relief, the court now turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue a certificate of appealability “if jurists of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. Where the court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the court should 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). In the present case, the court finds that reasonable jurists would not find the court’s determination that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Therefore, the court declines to issue a certificate of appealability. ///// ///// Accordingly, 1. The findings and recommendations issued (Doc. No. 18) on August 16, 2021 are adopted in full; 2. Respondent’s motion to dismiss (Doc. No. 13) is granted; 3. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 4. The court declines to issue a certificate of appealability; and 5. The Clerk of Court is directed to close this case. IT IS SOORDERED. a “ ji je Ff; Dated: _ October 25, 2021 Sea 1" S098 UNITED STATES DISTRICT JUDGE