United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS
PETITION FOR FAILURE TO STATE A CLAIM (DOC. 11)
K. Oberto. UNITED STATES MAGISTRATE JUDGE
31, 2016, Petitioner Erick Mark Watkins, a state prisoner
proceeding pro se, filed a petition for writ of
habeas corpus pursuant to 20 U.S.C. § 2254. The petition
was not clearly written but appeared to allege that
Petitioner had completed his sentence but had not been
released from prison. On July 18, 2016, Respondent moved to
dismiss the petition or, in the alternative, for a more
definite statement. On October 3, 2016, Petitioner moved for
appointment of counsel, providing documentation of a
developmental disability that limits his ability to read,
write, and understand legal materials. On October 7,
2016, the Court appointed the Federal Defender as counsel for
investigation, Petitioner's counsel filed a response
conceding that no evidence supported Petitioner's claim
that he had served his full sentence but had not been
released. As a result, Petitioner does not intend to amend or
supplement the petition. Because no factual basis supports
Petitioner's claim, the undersigned recommends that the
Court dismiss the petition for failure to state a claim.
Should Decline to Issue a Certificate of
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in
which the proceeding is held.
There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing
required by paragraph (2).
court denies a habeas petition, the court may only issue a
certificate of appealability "if jurists of reason could
disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further." Miller-El, 537 U.S. at 327;
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Although the petitioner is not required to prove the merits
of his case, he must demonstrate "something more than
the absence of frivolity or the existence of mere good faith
on his . . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's
determination that Petitioner is not entitled to federal