(HC) Jolivette v. Samuel

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL PATRICK JOLIVETTE, No. 2:23-cv-01732-KJM-DMC-P 12 Petitioner, ORDER 13 v. 14 DANNY SAMUEL, 15 Respondent. 16 17 Petitioner, a prisoner proceeding pro se, brings this petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by Eastern District of California local rules. 20 On June 25, 2024, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties, and which contained notice that the parties may file objections 22 within the time specified therein. Timely objections to the findings and recommendations have 23 been filed, and respondents have filed a response to the objections. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 26 the findings and recommendations to be supported by the record and by the proper analysis. 27 ///// 28 ///// ] Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 2 || Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 3 || this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 4 || 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 5 || 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 || constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 7 || appealability indicating which issues satisfy the required showing or must state the reasons why 8 | such acertificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 9 || procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 10 || jurists of reason would find it debatable whether the district court was correct in its procedural 11 | ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 12 || claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 13 || 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 14 | set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 15 || acertificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. The findings and recommendations filed June 25, 2024, ECF No. 30, are 18 | adopted in full. 19 2. Respondent's motion to dismiss, ECF No. 20, is GRANTED. 20 3. This action is DISMISSED as premature. 21 4. All other pending motions, ECF Nos. 4, 6, 12, 26, and 27, are DENIED as 22 || moot. 23 5. The Court DECLINES to issue a certificate of appealability. 24 6. The Clerk of the Court is directed to enter judgment and close this file. 25 || DATED: September 16, 2024. 26 27 CHIEF ED STATES DISTRICT JUDGE 28

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