1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYANT D. JEFFERY, No. 1:23-cv-01247 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS

13 v. (Doc. 7)

14 FRESNO COUNTY SUPERIOR COURT, ORDER DISMISSING PETITION FOR WRIT

OF HABEAS CORPUS AND DIRECTING

15 Respondent. CLERK OF COURT TO ENTER JUDGMENT

AND CLOSE CASE

16

ORDER DECLINING TO ISSUE

17 CERTIFICATE OF APPEALABILITY

18 19 Bryant D. Jeffery is a state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The assigned magistrate judge found Petitioner’s claims were unexhausted and 23 recommended the petition be dismissed. (Doc. 7.) The Court served the Findings and 24 Recommendations on Petitioner on the same date and notified him that any objections must be 25 filed within 21. (Id. at 3.) The Court also informed him that the failure to file objections by the 26 ordered deadline “may waive the right to appeal the District Court’s order.” (Id. at 4, citing 27 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).) Petitioner did not file objections, and the 28 deadline to do so has expired. 1 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 2 Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge’s 3 Findings and Recommendations are supported by the record and proper analysis. 4 In addition, the Court declines to issue a certificate of appealability. A state prisoner 5 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 6 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 7 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of 8 appealability is 28 U.S.C. § 2253, which provides as follows:

9 (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 appeal, by the court of 10 appeals for the circuit in which the proceeding is held.

11 (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 for commitment or 12 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 13 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 14 appeal may not be taken to the court of appeals from—

15 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 16 court; or

17 (B) the final order in a proceeding under section 2255.

18 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 19 right.

20 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 21 22 If a court denies a petitioner’s petition, the court may only issue a certificate of 23 appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 24 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 25 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 26 been resolved in a different manner or that the issues presented were ‘adequate to deserve 27 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 28 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 1 The Court finds that Petitioner has not made the required substantial showing of the denial 2 | of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists 3 | would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus 4 | relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court 5 | declines to issue a certificate of appealability. Accordingly, the Court ORDERS: 6 1. The Findings and Recommendations issued on August 23, 2023 (Doc. 7) are 7 ADOPTED in full. 8 2. The petition for writ of habeas corpus is DISMISSED without prejudice. 9 3. The Clerk of Court is directed to enter judgment and close the case. 10 4. The Court declines to issue a certificate of appealability. 11 This order terminates the action in its entirety. 12

B IT IS SO ORDERED.

14 | Dated: _ October 3, 2023 Cerin | Tower

TED STATES DISTRICT JUDGE

15 16 17 18 19 20 21 22 23 24 25 26 27 28