(HC) Pilman v. Fisher

Opinion

GERALD PILMAN, No. 2:20-CV-1771-WBS-DMC-P Petitioner, v. ORDER Respondent. Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules. On March 12, 2021, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within the time specified therein. The court construes Petitioner’s untimely opposition to Respondent’s motion to dismiss, filed on March 29, 2021, as Petitioner’s objections to the March 12, 2021, findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. ] 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 the petition is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why sucha certificate should not issue. See Fed. R. App. P. 22(b). Where 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 Magistrate Judge’s findings and recommendations, the court finds that issuance of acertificate of appealability is not warranted in this case. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed March 12, 2021, are ADOPTED in full; 2. Respondent’s motion to dismiss, ECF No. 12, is GRANTED; 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: April 27, 2021 hk bh lkA. Ce