James Curtis Kern v. Superior Court of California County of Sacramento

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CURTIS KERN, No. 2:24-cv-02432-DAD-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 SUPERIOR COURT OF CALIFORNIA HABEAS PETITION COUNTY OF SACRAMENTO, 15 (Doc. Nos.1, 12) Respondent. 16

17 18 Petitioner James Kern, a state prisoner proceeding pro se and in forma pauperis, brings 19 this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to 20 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On May 16, 2025, the assigned magistrate judge issued findings and recommendations 22 recommending that the first amended petition be dismissed without prejudice and without leave to 23 amend. (Doc. No. 12 at 2.) Specifically, the magistrate judge concluded that petitioner has failed 24 to present his claims to the state’s highest court for review before the filing of this federal habeas 25 action as is required. (Id. at 1–2.) 26 The pending findings and recommendations were served on the parties and contained 27 notice that any objections thereto were to be filed within fourteen (14) days after service. 28 ///// 1 (Id. at 2.) To date, no objections to the findings and recommendations have been filed, and the 2 time in which to do so has now passed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 4 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 5 findings and recommendations are supported by the record and by proper analysis. 6 In addition, the court declines to issue a certificate of appealability.1 A certificate of 7 appealability may issue “only if the applicant has made a substantial showing of the denial of a 8 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 9 appealability indicating which issues satisfy the required showing or state the reasons why such a 10 certificate should not issue. Fed. R. App. P. 22(b). Where constitutional claims are denied on the 11 merits, the petitioner must show that reasonable jurists would find the district court’s assessment 12 of the constitutional claims debatable or wrong. Slack, 529 U.S. at 484–85. Where, as here, the 13 petition is dismissed on procedural grounds, a certificate of appealability should issue if the 14 prisoner can show: (1) that jurists of reason would find it debatable whether the district court was 15 correct in its procedural ruling; and (2) that jurists of reason would find it debatable whether the 16 petition states a valid claim of the denial of a constitutional right. Id. In the present case, the 17 court concludes that reasonable jurists would not find the court’s dismissal of petitioner’s claims 18 to be debatable, wrong, or deserving of encouragement to proceed further. 19 Accordingly: 20 1. The findings and recommendations filed on May 16, 2025 (Doc. No. 12) are 21 ADOPTED IN FULL; 22 2. This action is dismissed without leave to amend and without prejudice to the filing 23 of a new habeas action once petitioner has properly exhausted his claims by 24 presentation to the state’s highest court;

25 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court has considered whether to issue a certificate of appealability. See L.R. 191(j). A habeas 26 petitioner may appeal only those claims for which a certificate of appealability is granted. See 28 27 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Rios v. Garcia, 390 F.3d 1082, 1088 (9th Cir. 2004); see also Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 28 (2000). 1 3. The court declines to issue a certificate of appealability pursuant to 28 U.S.C. 2 § 2253; and 3 4. The Clerk of the Court is directed to CLOSE this case. 4 IT IS SO ORDERED. > | Dated: _ April 9, 2026 Da A. 2, oyel 6 DALE A. DROZD 4 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28