(HC) Smith v. Atchley

Opinion

GILBERT EARL SMITH, No. 2:21-cv-2080-TLN-DMC Petitioner, ORDER v. Respondent. 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 pursuant to Eastern District of California local rules. On February 22, 2024, the Magistrate Judge filed findings and recommendations herein which were served on Petitioner, and contained notice that Petitioner may file objections within the time specified therein. (ECF No. 25.) Petitioner filed objections to the findings and recommendations, which the Court considered. (ECF No. 32.) 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 Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed the file, the Court finds the findings and recommendations to be supported by the record and by the magistrate judge’s 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 such acertificate 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 as follows: 1. The findings and recommendations, filed on February 22, 2024 (ECF No. 25), are ADOPTED IN FULL; 2. Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED; 3. The Court DECLINES to issue a certificate of appealability; and 4. The Clerk of the Court is directed to close this case. Date: August 5, 2024 () jf Mn Voskouy Troy L. Nuhlep> ] United States District Judge