1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL POSEY, III, No. 2:24-CV-03019-DC-JDP (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 UNITED STATES OF AMERICA, HABEAS PETITION 15 Respondent. (Doc. No. 22) 16 17 Petitioner Daniel Posey, III is a federal prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to

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

(b)(1)(B) and Local Rule 302. 20 On February 12, 2025, the assigned magistrate judge issued findings and 21 recommendations recommending this case be dismissed without prejudice for failure to pay the 22 filing fee, failure to prosecute this action, and failure to comply with a court order. (Doc. No. 22.) 23 Specifically, Petitioner failed to comply with the November 27, 2024 court order, in which the 24 court directed Petitioner to file an application for his request to proceed in forma pauperis 25 application or pay the required filing fee. (Doc. No. 20.) Petitioner did not thereafter file an in 26 forma pauperis application or pay the required filing fee. Consequently, the magistrate judge 27 issued an order to show cause on January 10, 2025, directing Petitioner to explain why the court 28 should not dismiss the case due to his failure to pay the filing fee and/or file an in forma pauperis 1 application, to prosecute this action, and to comply with court orders. (Doc. No. 21.) Petitioner 2 did not thereafter file a response to the order to show cause or otherwise communicate with the 3 court. 4 The pending findings and recommendations were served on Petitioner and contained 5 notice that any objections thereto were to be filed within fourteen (14) days after service. (Doc. 6 No. 22 at 3.) To date, no objections to the findings and recommendations have been filed, and the 7 time in which to do so has now passed.1 8 In accordance with the provisions of

(b)(1)(C), this court has conducted a 9 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 10 findings and recommendations are supported by the record and by proper analysis. 11 Having concluded that the pending petition must be dismissed, the court also declines to 12 issue a certificate of appealability. A petitioner seeking writ of habeas corpus has no absolute 13 right to appeal; he may appeal only in limited circumstances. See

; Miller-El v. 14 Cockrell,

, 335–36 (2003). If a court denies a petitioner's petition, the court may only 15 issue a certificate of appealability when a petitioner makes a substantial showing of the denial of 16 a constitutional right.

(c)(2). Where, as here, the court denies habeas relief on 17 procedural grounds without reaching the underlying constitutional claims, the court should issue a 18 certificate of appealability “if jurists of reason would find it debatable whether the petition states 19 a valid claim of the denial of a constitutional right and that jurists of reason would find it 20 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

, 484 (2000). In the present case, the court finds that reasonable jurists would not find the 22 court's determination that the pending petition must be dismissed to be debatable or wrong. Thus, 23 the court declines to issue a certificate of appealability. 24 /////

25 1 The service copy of the court’s November 27, 2024, and January 10, 2025, orders which were mailed to Petitioner at his address of record, were returned to the court marked as “Undeliverable, 26 Return to Sender and Undeliverable, no longer here.” Pursuant to Local Rule 183, Petitioner was 27 required to file a notice of his change of address with the court. Accordingly, the court finds this is a separate ground from which to dismiss the petition without prejudice. 28 1 Accordingly, 2 1. The findings and recommendations issued on February 12, 2025 (Doc. No. 22) are 3 ADOPTED in full; 4 2. The petition for writ of habeas corpus (Doc. No. 2) is dismissed without prejudice; 5 3. The court declines to issue a certificate of appealability; and 6 4. The Clerk of the Court is directed to close this case. 7 8 9 IT IS SO ORDERED. □ 10 | Dated: _ April 10, 2025 RVI <—_ Dena Coggins 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28