Reyes v. Allison

Opinion

CARLOS REYES, Case No. 21-cv-0632-MMA (KSC)

Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED v. STATES MAGISTRATE JUDGE;

KATHLEEN ALLISON, et al., [Doc. No. 13]

Respondents. GRANTING RESPONDENTS’ MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; AND [Doc. No. 6] DECLINING TO ISSUE A APPEALABILITY

Petitioner Carlos Reyes (“Petitioner”), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. See Doc. No. 1. On July 15, 2021, Respondents Kathleen Allison and Xavier Becerra (“Respondents”) filed a motion to dismiss for failure to state a claim, to which Petitioner filed a response. See Doc. Nos. 6, 12. The matter was referred to United States Magistrate Judge Karen S. Crawford for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2. Judge Crawford issued a thorough and well-reasoned Report recommending that the motion be granted. See Doc. No. 13. Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must “make a de novo determination of those portions of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Objections to the Report and Recommendation were due no later than December 15, 2021. Doc. No. 13 at 7. To date, no objections have been filed, and the time for doing so has expired. See Docket. The Court finds Judge Crawford has issued an accurate Report and well-reasoned recommendation that the motion to dismiss be granted. Accordingly, the Court ADOPTS the Report and Recommendation in its entirety. The federal rules governing habeas cases brought by state prisoners require a district court that dismisses or denies a habeas petition to grant or deny a certificate of appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. A certificate of appealability is not issued unless there is “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the Report and Recommendation and incorporated herein, the Court finds that this standard has not been met and therefore DECLINES to issue a certificate of appealability. Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety, GRANTS the motion to dismiss, DENIES Petitioner’s request to convert the Petition into a § 1983 complaint, and DISMISSES the Petition without leave to amend. Dismissal is without prejudice to Petitioner filing a § 1983 complaint. The Court further DECLINES to issue a certificate of appealability and DIRECTS the Clerk of Court to enter judgment in favor of Respondents and terminate this case. Dated: January 10, 2022 Mbihul MU lolbe □□ 5 HON. MICHAEL M. ANELLO United States District Judge