(HC) Ortega v. Kings County Jail

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALFREDO ORTEGA, No. 1:21-cv-00665-NONE-EPG-HC

Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS, DISMISSING v. PETITION FOR WRIT OF HABEAS

CORPUS, DIRECTING CLERK OF COURT

KINGS COUNTY JAIL, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE

Respondent. CERTIFICATE OF APPEALABILITY (Doc. No. 4)

Petitioner Alfredo Ortega is proceeding pro se with a petition for writ of habeas corpus. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On June 22, 2021, the assigned magistrate judge issued findings and recommendations recommending that the petition for writ of habeas corpus be dismissed without prejudice because it appears that petitioner has presented his claims to the wrong court. (Doc. No. 4.) The findings and recommendations were served petitioner and contained notice that any objections were to be filed within thirty (30) days of the date of service of the findings and recommendations. To date, no objections have been filed, and the time for doing so has passed.1

1 On July 2, 2021, the findings and recommendations were returned as undeliverable with the notation of “inmate not here.” Absent notice of a party’s change of address, service of documents at the prior address of the party is fully effective. Local Rule 182(f).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court holds the findings and recommendation to be supported by the record and proper analysis.

Having found that petitioner is not entitled to habeas relief, the court now turns to whether acertificate of appealability should issue. 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 v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. The court should issue a certificate of appealability 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 vy. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 12 | 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 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 June 22, 2021 (Doc. No. 4) are adopted in full;

2. The petition for writ of habeas corpus is dismissed without prejudice; 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of closing the case and then to close the case; and

4. The court declines to issue a certificate of appealability.

IT IS SO ORDERED. ~ ‘ai

Dated: _ October 6, 2021 wee Te oF UNITED STATES DISTRICT JUDGE