(HC) Gholar v. CDCR

Opinion

JULES ANTHONY GHOLAR, No. 2:20-cv-2457-KJM-DMC-P Petitioner, ORDER v. CORRECTIONS AND REHABILITATION, et al., Respondents. Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules. On August 25, 2021, the Magistrate Judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within the time specified therein. No objections to the findings and recommendations have been filed. The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the file, the court finds the correct the findings and recommendation set forth in Section H(A) of the findings and recommendations, specifically, that the petition before the court is a second or successive petition within the meaning of 28 U.S.C. § 2244(b), that petitioner has not obtained the necessary authorization from the court of appeals required to proceed with the current petition, and that this court therefore lacks jurisdiction over the petition, ECF No. 15 at 3-4. See, e.g., Cooper v. Calderon, 274 F.3d 1270, 1274-1275 (9th Cir. 2001). Given the absence of jurisdiction, the court makes no ruling with respect to sections T[(B) or II(C) of the findings and recommendations. Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where, as here, the petition is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons set forth in the section I of the magistrate judge’s findings and recommendations, the court finds that issuance of a certificate of appealability is not warranted in this case. Accordingly, IT IS HEREBY ORDERED that: 1. The court adopts in full the findings and recommendations filed August 25, 2021 at pages 1 through 4:13 and declines to adopt the remainder of the August 25, 2021 findings and recommendations; 2. Respondents’ motion to dismiss, ECF No. 9, is granted to the extent consistent with this order; 3. The Court declines to issue a certificate of appealability; and 4. The Clerk of the Court is directed to enter judgment and close this file. DATED: May 23, 2022 (] l cua / { g_/ CHIEF NT] ED STATES DISTRICT JUDGE