(HC) Leavy v. Warden

Opinion

CARNELL A. LEAVY, ) Case No.: 1:22-cv-00915-KES-HBK (HC) ) Petitioner, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS, DENYING PETITION v. ) FOR WRIT OF HABEAS CORPUS, ) DIRECTING CLERK OF COURT TO CLOSE WARDEN, ) CASE, AND DECLINING TO ISSUE ) CERTIFICATE OF APPEALABILITY Respondent. ) ) (Docs. 1, 22) ) Petitioner Carnell A. Leavy is a state prisoner proceeding pro se on his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 17, 2025, the assigned magistrate judge issued findings and recommendations recommending that the petition for writ of habeas corpus be denied as without merit, and that the Court decline to issue a certificate of appealability. Doc. 22. Those findings and recommendations were served upon all parties and contained notice that any objections thereto were to be filed within fourteen (14) days after service. Petitioner filed objections on August 4, 2025. Doc. 23. In his objections, petitioner largely reasserts arguments raised in support of the initial petition and requests that the Court issue a certificate of appealability. See id. Pursuant to 28 U.S.C. § 636(b)(1), the Court performed a de novo review of this case. Having carefully reviewed the matter, the Court concludes the findings and recommendations are supported by the record and proper analysis. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Ifa court denies a habeas petition on the merits, the court may issue a certificate of appealability only “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; 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. The Court finds that reasonable jurists would not find the Court’s determination that the petition should be denied debatable or wrong, or that the issues presented are deserving of encouragement 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. Based upon the foregoing, the Court ORDERS: 1. The findings and recommendations issued on July 17, 2025, Doc. 22, are ADOPTED in full. 2. The petition for writ of habeas corpus, Doc. 1, is DENIED. 3. The Court declines to issue a certificate of appealability. 4. The Clerk of the Court is directed to close the case. IT IS SO ORDERED. _ 4 fy Dated: _ August 6, 2025 UNITED STATES DISTRICT JUDGE