(HC) Sharp v. Borla

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY ANDRE SHARP, No. 1:24-cv-00326-KES-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 EDWARD BORLA, HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE 15 Respondent. CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 16 Docs. 10, 12 17 18 Petitioner Anthony Andre Sharp is a state prisoner proceeding pro se with a petition for 19 writ of 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 August 22, 2024,1 the assigned magistrate judge issued findings and recommendations 22 recommending that the petition be dismissed without prejudice for failure to exhaust state judicial 23 remedies. Doc. 12. On September 12, 2024, petitioner filed timely objections. Doc. 13. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 25 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 26 Court finds the findings and recommendations to be supported by the record and proper analysis. 27 1 The findings and recommendations were signed on August 21, 2024, but not docketed until 28 August 22, 2024. 1 Petitioner’s objections allege that he has exhausted in the state courts the two claims that he seeks 2 to raise in this petition, but he fails to identify the case number for those proceedings in the state 3 courts and does not attach the decisions of those courts to his petition or objections. Petitioner 4 has failed to show that his claims were exhausted and or that the magistrate judge erred in 5 recommending that the petition be dismissed without prejudice. 6 Having found that petitioner is not entitled to habeas relief, the Court now turns to 7 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 8 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 9 allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 10 U.S.C. § 2253. Where, as here, the Court denies habeas relief on procedural grounds without 11 reaching the underlying constitutional claims, the Court should issue a certificate of appealability 12 “if jurists of reason would find it debatable whether the petition states a valid claim of the denial 13 of a constitutional right and that jurists of reason would find it debatable whether the district court 14 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a 15 plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a 16 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 17 that the petitioner should be allowed to proceed further.” Id. 18 In the present case, the Court finds that reasonable jurists would not find the Court’s 19 determination that the petition should be dismissed debatable or wrong, or that Petitioner should 20 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly: 2 1. The findings and recommendations issued on August 22, 2024, Doc. 12, are 3 ADOPTED in full; 4 2. Respondent’s motion to dismiss, Doc. 10, is GRANTED; 5 3. The petition for writ of habeas corpus is DISMISSED without prejudice; 6 4. The Clerk of Court is directed to close the case; and 7 5. The Court declines to issue a certificate of appealability. 8 9 19 | TPIS SO ORDERED. _ 11 Dated: _ November 17, 2024 4h UNITED STATES DISTRICT JUDGE

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