1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORREY SELCK, No. 2:21-cv-01499-DAD-DMC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 COUNTY OF SACRAMENTO, RESPONDENT’S MOTION TO DISMISS THIRD AMENDED HABEAS PETITION 15 Respondent. (Doc. Nos. 32, 33) 16 17 Petitioner Morrey Selck proceeds pro se with a petition for a writ of habeas corpus 18 pursuant to

. The matter was referred to a United States Magistrate Judge 19 pursuant to

(b)(1)(B) and Local Rule 302. 20 On October 16, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that respondent’s motion to dismiss (Doc. No. 32) be granted and this action be 22 dismissed because petitioner’s third amended petition fails to comply with Rule 2 of the Rules 23 Governing Section 2254 Cases. (Doc. No. 33.) The magistrate judge also found that petitioner’s 24 federal habeas petition should be dismissed as untimely because petitioner filed the original 25 federal habeas “petition on August 20, 2021, for relief from a conviction in 2018; more than one 26 year having passed since the date of the conviction.” (Id. at 2–3.) Those findings and 27 recommendations were served on all parties and contained notice that any objections thereto were 28 to be filed within fourteen (14) days from the date of service. (Id. at 4.) On October 30, 2023, 1 petitioner filed objections to the pending findings and recommendations. (Doc. No. 34.) 2 Respondent did not file a response thereto or objections of its own. 3 In his objections, petitioner repeats the arguments that he had presented in opposition to 4 respondent’s motion to dismiss and that the magistrate judge already addressed in the findings 5 and recommendations. (Id. at 2–3.) In addition, while not entirely clear, in his objections, 6 petitioner appears to concede that his petition is untimely and subject to dismissal on that basis. 7 (Id. at 3) (“Plaintiff [sic] asserts that respondent motion to dismiss is consented without 8 contention.”);

(“Petitioner asserts to respondents motion to dismiss by cause of untimely filing 9 on one conviction is accepted.”). Thus, petitioners objections provide no basis upon which to 10 reject the pending findings and recommendations. 11 In accordance with the provisions of

(b)(1)(C), the court has conducted a 12 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 13 objections, the court concludes that the pending findings and recommendations are supported by 14 the record and proper analysis. 15 Having concluded that the pending petition must be dismissed, the court also declines to 16 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 17 right to appeal; he may appeal only in limited circumstances. See

; Miller-El v. 18 Cockrell,

(2003). If a court denies a petitioner’s petition, the court may 19 only issue a certificate of appealability when a petitioner makes a substantial showing of the 20 denial of a constitutional right.

(c)(2). Where, as here, the court denies habeas 21 relief on procedural grounds without reaching the underlying constitutional claims, the court 22 should issue a certificate of appealability “if jurists of reason would find it debatable whether the 23 petition states a valid claim of the denial of a constitutional right and that jurists of reason would 24 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 25 McDaniel,

(2000). In the present case, the court finds that reasonable jurists 26 would not find the court’s determination that the pending petition must be dismissed to be 27 debatable or wrong. Thus, the court declines to issue a certificate of appealability. 28 ///// 1 2 Accordingly, 3 1. The findings and recommendations issued on October 16, 2023 (Doc. No. 33) are 4 adopted in full; 5 2. Respondent’s motion to dismiss the operative third amended petition for writ of 6 habeas corpus (Doc. No. 32) is granted; 7 3, This action is dismissed; 8 4. The court declines to issue a certificate of appealability; and 9 5. The Clerk of the Court is directed to close this case. 10 IT IS SO ORDERED. pated: _ January 30, 2024 Dak A. 2, axel 12 DALE A. DROZD UNITED STATES DISTRICT JUDGE

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