(HC) Wilhelm v. People of the State of California

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVE WILHELM, No. 1:20-cv-01659-NONE-EPG (HC) Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS AND DISMISSING v. § 2254 PETITION

PEOPLE OF THE STATE OF (Doc. Nos. 1, 8)

CALIFORNIA,

Respondent.

Petitioner Steve Wilhelm, a state prisoner, is bringing this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254 challenging the California Board of Parole Hearings decision to deny him parole. (Doc. No. 1 ¶ 12.) Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302, the instant federal habeas petition was referred to a United States Magistrate Judge. Following Rule 4 of the Rules Governing § 2254 Cases, the assigned magistrate judge screened the instant habeas petition and found that petitioner’s claim challenging the denial of his release on parole to not fall within “the core of habeas corpus.” (Doc. No. 8 at 2–3) (citing Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016)). The magistrate judge further found that this § 2254 petition is not “amenable to conversion on its face” and recommended that the petition be dismissed for lack of jurisdiction. (Id. at 3–4) (citing Nettles, 830 F.3d at 936). To date, petitioner has not objected to the pending findings and recommendations and the time to do so has passed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of the case and concludes that the findings and recommendations are supported by the record and proper analysis and should be adopted.

The court must now turn to whether a certificate of appealability should be issued. A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El y. 1 Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 } (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not find the court’s determination that the petition should be dismissed to be debatable or wrong, or that petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability.

Accordingly:

1. The findings and recommendations issued on December 16, 2020 (Doc. No. 8) are ADOPTED;

2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 3. The court DECLINES to issue a certificate of appealability; and 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purpose of closing the case and then close this case.

IT IS SO ORDERED. me □ Dated: _ March 15, 2021 al, Al 4 7 ae UNITED STATES DISTRICT JUDGE