1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MANUEL JUAREZ, No. 1:22-cv-01151-JLT-SKO (HC) Petitioner, 12 ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS IN FULL

13 v. (Doc. 3)

14 ORDER DISMISSING PETITION FOR WRIT

ADMINISTRATIVE REVIEW 602 OF HABEAS CORPUS, DIRECTING CLERK

15 OFFICE and UNITED STATES OF COURT TO ENTER JUDGMENT AND

DISTRICT COURT, CLOSE CASE, AND DIRECTING CLERK OF

16 Respondents. COURT TO PROVIDE PETITIONER BLANK

CIVIL RIGHTS FORM

17

ORDER DECLINING TO ISSUE

18 CERTIFICATE OF APPEALABILITY 19 The assigned magistrate judge found Petitioner failed to state a cognizable habeas claim, 20 because Petitioner does not challenge his conviction, but rather raises claims related to 21 confiscation of property. (Doc. 3.) Therefore, the magistrate judge recommended the petition be 22 dismissed without prejudice to Petitioner filing a civil action. (See id. at 2-3.) 23 Petitioner objected to the Findings and Recommendations. (Doc. 4.) He concedes he is 24 bringing claims concerning the conditions of confinement, and he acknowledges that the proper 25 avenue for relief for his complaints is a civil rights complaint. Nevertheless, he takes issue with 26 the filing fee for said complaint. (See id. at 6-7.) He asserts that he cannot afford to pay the filing 27 fee. (Id. 28 1 Petitioner is advised that in general, a party instituting a civil action is required to pay a 2 filing fee of $350. 28 U.S.C. § 1914. However, a party who cannot afford to pay the filing fee 3 in full at one time may apply for in forma pauperis status under 28 U.S.C. § 1915. This section 4 provides in relevant part:

5 (b)(1) . . . if a prisoner brings a civil action or files an appeal in forma paperis, the prisoner shall be required to pay the full amount of a filing fee. The court 6 shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of -- 7 (A) the average monthly deposits to the prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6- 8 month period immediately preceding the filing of the complaint or notice of appeal. 9 (2) After the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to 10 the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the 11 amount in the account exceeds $10 until the filing fees are paid. 12 28 U.S.C. § 1915 (b)(1),(2). In forma pauperis status does not waive the filing fee for 13 incarcerated/detained plaintiffs; rather it allows such persons to make payments on the filing fee 14 until it is paid in full. Should Petitioner file a civil rights complaint and be granted in forma 15 pauperis status, Petitioner would be required to make monthly payments on the filing fee through 16 withdrawals from his inmate trust account. Such withdrawals would continue until the filing fee 17 is paid in full, regardless of whether the action is open or dismissed and closed. 18 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 19 Having carefully reviewed the entire file— including Petitioner’s objections— the Court 20 concludes the Findings and Recommendations are supported by the record and proper analysis. 21 The Magistrate Judge correctly found that the claims cannot proceed in a habeas corpus action, 22 and the petition must be dismissed. 23 In addition, the Court declines to issue a certificate of appealability. A state prisoner 24 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 25 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 26 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 27 appealability is 28 U.S.C. § 2253, which provides as follows:

28 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 1 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test 3 the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test 4 the validity of such person's detention pending removal proceedings.

5 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 6 (A) the final order in a habeas corpus proceeding in which the 7 detention complained of arises out of process issued by a State court; or 8 (B) the final order in a proceeding under section 2255. 9 (2) A certificate of appealability may issue under paragraph (1) only if the 10 applicant has made a substantial showing of the denial of a constitutional right. 11 (3) The certificate of appealability under paragraph (1) shall indicate which 12 specific issue or issues satisfy the showing required by paragraph (2).

13 If a court denies a petition, it may only issue a certificate of appealability when a petitioner makes 14 a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a 15 substantial showing, the petitioner must establish “reasonable jurists could debate whether (or, for 16 that matter, agree that) the petition should have been resolved in a different manner or that the 17 issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 18 McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 19 In the present case, the Court finds Petitioner has not made the required substantial 20 showing of the denial of a constitutional right to justify the issuance of a certificate of 21 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 22 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 23 proceed further. Thus, the Court declines to issue a certificate of appealability. In addition, the 24 Court ORDERS: 25 1. The Findings and Recommendations issued on October 3, 2022 (Doc. 3), are 26 ADOPTED in full. 27 2. The petition for writ of habeas corpus is summarily DISMISSED without 28 1 prejudice to filing a civil action. 2 3. The Clerk of Court is directed to serve Petitioner with blank forms for filing a civil 3 rights action. 4 4. The Clerk of Court is directed to enter judgment and close the case. 5 5. The Court declines to issue a certificate of appealability. 6 7 IT IS SO ORDERED. Dated: _ October 7, 2022 Cerin | Tower

TED STATES DISTRICT JUDGE

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