(HC)Kahaku v. Covello

Opinion

DANIEL KAHAKU, ) Case No.: 1:21-cv-01597-JLT-HBK (HC) ) Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, GRANTING v. ) RESPONDENT’S MOTION TO DISMISS, ) DENYING PETITIONER’S MOTION TO STAY; PATRICK COVELLO, Warden, ) DENYING PETITION FOR WRIT OF HABEAS ) CORPUS, DIRECTING CLERK OF COURT TO Respondent. ) CLOSE CASE, AND DECLINING TO ISSUE ) CERTIFICATE OF APPEALABILITY ) ) (Docs. 1, 8, 12, 22) ) The assigned magistrate judge has recommended that Respondent’s Motion to Dismiss be granted, Petitioner’s Motion to stay be denied, and the Petition be dismissed for failure to state a cognizable federal habeas claim. (Doc. 22.) Those Findings and Recommendations were served upon all parties. At that time, the Court advised the parties that any objections were to be filed within 14 days after service. The Court also advised the parties “that failure to file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Petitioner has not filed objections, and the time for doing so has passed. According to 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a de novo review of the case. Having carefully reviewed the entire matter, the Court finds the magistrate judge’s Findings and Recommendations are supported by the record and proper analysis. Also, a petitioner 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 vy. Cockrell, 537 U.S. 322, 335-36 (2003); 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; 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 US. 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 27, 2022, (Doc. 22), are ADOPTED in full. 2. Respondent’s Motion to Dismiss (Doc. 12) is GRANTED. 3. Petitioner’s Motion to Stay (Doc. 8) is DENIED. 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. Dated: _ September 4, 2022 Charis [Tourn TED STATES DISTRICT JUDGE