(HC) Parks v. People of the State of California

Opinion

ARCHIE PARKS, No. 1:21-cv-01010-NONE-JLT (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR PEOPLE OF THE STATE OF PURPOSE OF CLOSING CASE AND THEN CALIFORNIA, CLOSE CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY Respondent. (Doc. No. 6)

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 29, 2021, the magistrate judge assigned to the case issued findings and recommendations recommending that the pending petition be dismissed as an unauthorized second or successive petition. (Doc. No. 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. To date, no party has filed objections. 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. In addition, the court declines to issue a certificate of appealability. 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, 335-336 (2003); see also 28 U.S.C. § 2253. A successive petition under 28 U.S.C. § 2255 that is disguised as a § 2241 petition required a certificate of appealability. Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). If a court denies a petitioner’s petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, the court finds that petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the court’s determination that petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the court therefore DECLINES to issue a certificate of appealability. Accordingly, the court orders as follows: 1. The findings and recommendations, filed June 29, 2021 (Doc. No. 6), are ADOPTED IN FULL; 2. The petition for writ of habeas corpus is DISMISSED; ///// ///// ///// ///// 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the purpose of closing the case and then to close the case; and 4. The court DECLINES to issue a certificate of appealability. IT IS SO ORDERED. a " Li. wh F Dated: _ October 13, 2021 Sea 1" S098 UNITED STATES DISTRICT JUDGE