1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP EUGENE LABARR, No. 1:24-cv-01262-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE, DECLINING 14 v. TO ISSUE CERTIFICATE OF APPEALABILITY, AND DIRECTING 15 CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE 16 PEOPLE OF THE STATE OF (Doc. 10) 17 CALIFORNIA, 18 Respondent. 19 20 Petitioner Phillip Eugene LaBarr is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to

. This matter was 22 referred to a United States Magistrate Judge pursuant to

(b)(1)(B) and Local 23 Rule 302. 24 On October 18, 2024, the assigned magistrate judge made a preliminary review of the 25 petition and determined that the petition failed to state a claim for relief, failed to exhaust state 26 remedies, and failed to name a proper respondent. Doc. 8. Pursuant to Rule 4 of the Rules 27 Governing Section 2254 Cases, the assigned magistrate judge dismissed the petition without 28 prejudice and directed the Clerk of Court to provide petitioner with a blank habeas corpus form so 1 that he could file an amended petition which might cure the identified deficiencies. See

The 2 order gave petitioner thirty days to file an amended petition, see

but he never did so. 3 Therefore, on December 2, 2024, the assigned magistrate judge issued findings and 4 recommendations recommending that the petition be dismissed with prejudice for failure to state 5 a claim, failure to exhaust state remedies, and failure to name a proper respondent. Doc. 10. 6 Those findings and recommendations were served upon all parties and contained notice that any 7 objections thereto were to be filed within twenty-one (21) days after service. No objections have 8 been filed, and the deadline to do so has expired. 9 In accordance with the provisions of

(b)(1), the Court has conducted a de 10 novo review of the case. Having carefully reviewed the file, the Court concludes that the 11 magistrate judge’s findings and recommendations are supported by the record and proper 12 analysis. 13 Having found that petitioner is not entitled to habeas relief, the Court now turns to 14 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 15 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is 16 allowed only in certain circumstances. Miller-El v. Cockrell,

(2003). If a 17 court denies a habeas petition on the merits, the court may issue a certificate of appealability only “if 18 jurists of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional 19 claims or that jurists could conclude the issues presented are adequate to deserve encouragement to 20 proceed further.” Miller-El,

; Slack v. McDaniel,

(2000). While 21 the petitioner is not required to prove the merits of his case, he must demonstrate “something more 22 than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El,

. 24 In the present case, the Court finds that reasonable jurists would not find the Court’s 25 determination that the petition should be denied debatable, wrong, or deserving of encouragement to 26 proceed further. Petitioner has not made the required substantial showing of the denial of a 27 constitutional right. Therefore, the Court declines to issue a certificate of appealability. 28 / / / 1 Accordingly, 2 1. The findings and recommendations issued on December 2, 2024, Doc. 10, are 3 adopted in full; 4 2. The petition for writ of habeas corpus is dismissed with prejudice; 5 3. The Clerk of Court is directed to enter judgment and close the case; and 6 4. The Court declines to issue a certificate of appealability. 4 8 g | SO ORDERED. _ 10 Dated: _ January 12, 2025 4h UNITED STATES DISTRICT JUDGE

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