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UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

8 STEVE OSCAR BLACKWELL AUSTIN, CASE NO. 1:20-cv-01449-AWI-JLT (HC) 9 Petitioner, ORDER ADOPTING FINDINGS AND 10 RECOMMENDATIONS, DISMISSING v. PETITION FOR WRIT OF HABEAS 11 CORPUS, DIRECTING CLERK OF COURT

STANISLAUS COUNTY SUPERIOR TO ENTER JUDGMENT AND CLOSE CASE,

12 COURT, AND DECLINING TO ISSUE CERTIFICATE

OF APPEALABILITY

13 Respondent. (Doc. No. 10) 14 15 16 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. On December 2, 2020, the magistrate judge 18 assigned to this case issued a Findings and Recommendation that recommended the petition be 19 dismissed without prejudice. Doc. No. 10. The Findings and Recommendation was served upon 20 all parties and contained notice that any objections were to be filed within twenty-one days from 21 the date of service of the instant order. To date, no party has filed objections. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 23 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the 24 Findings and Recommendation is supported by the record and proper analysis. 25 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 26 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 27 El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining whether to 28 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 1 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on 2 appeal, by the court of appeals for the circuit in which the proceeding is held. 3 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place 4 for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s 5 detention pending removal proceedings. 6 (c) (1) Unless a circuit justice or judge issues a certificate of 7 appealability, an appeal may not be taken to the court of appeals from— 8 (A) the final order in a habeas corpus proceeding in 9 which the detention complained of arises out of process issued by a State court; or 10 (B) the final order in a proceeding under section 2255. 11 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of 12 the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall 13 indicate which specific issue or issues satisfy the showing required by paragraph (2). 14 15 If a petition is denied, the court may only issue a certificate of appealability when a 16 petitioner makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). To 17 make a substantial showing, the petitioner must establish that “reasonable jurists could debate 18 whether (or, for that matter, agree that) the petition should have been resolved in a different 19 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 20 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 21 880, 893 n.4 (1983)). 22 In the present case, the Court finds that Petitioner has not made the required substantial 23 showing of the denial of a constitutional right to justify the issuance of a certificate of 24 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 25 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 26 proceed further. Thus, the Court will decline to issue a certificate of appealability. 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendation issued on December 2, 2020 (Doc. No. 10) is 3 ADOPTED in full; 4 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 5 3. The Clerk of Court is directed to CLOSE the case; and 6 4. The Court DECLINES to issue a certificate of appealability. 7 g IT IS SO ORDERED. g | Dated: _ February 2, 2021 7 : 7 Cb bod

SENIOR DISTRICT JUDGE

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