(HC) Zimmerman v. Neuschmid

• Court: District Court, E.D. California
• Decided: November 13, 2019
• Docket: 2:19-cv-01736
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ZIMMERMAN, No. 2:19-cv-01736-TLN-GGH 12 Petitioner, 13 v. ORDER 14 ROBERT NEUSCHMID, Warden, 15 Respondent. 16 17 Petitioner Kenneth Zimmerman (“Petitioner”), a state prisoner proceeding pro se, has filed 18 this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On September 17, 2019, the magistrate judge filed findings and recommendations herein 22 which were served on Petitioner and which contained notice to Petitioner that any objections to 23 the findings and recommendations were to be filed within fourteen days. (ECF No. 6.) On 24 October 4, 2019, Petitioner filed his “Objections to Magistrate Judge’s Findings and 25 Recommendation.” (ECF No. 7.) 26 This Court reviews de novo those portions of the proposed findings of fact to which 27 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 28 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 1 to any portion of the proposed findings of fact to which no objection has been made, the Court 2 assumes its correctness and decides the motions on the applicable law. See Orand v. United 3 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 4 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 Having carefully reviewed the entire file under the applicable legal standards, the Court 6 finds the Findings and Recommendations to be supported by the record and by the magistrate 7 judge’s analysis. 8 Petitioner objects to the Findings and Recommendations on the basis that the grounds 9 raised in the instant petition are different from those raised in Petitioner’s prior petition. (ECF 10 No. 7 at 1–2, citing Sanders v. United States, 373 U.S. 1, 16–17 (1963).) Petitioner’s reliance on 11 Sanders for this contention is unavailing.1 The Findings and Recommendations state that if 12 Petitioner is seeking leave to file a second or successive habeas application, he must once again 13 obtain a certification from the Ninth Circuit authorizing the Court to consider any subsequent 14 habeas petition. (ECF No. 6 at 2.) The Court agrees. Therefore, Petitioner’s objections are 15 overruled. 16 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 17 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 18 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 19 Where the petition is denied on the merits, a certificate of appealability may issue under 28 20 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 21 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 22 appealability indicating which issues satisfy the required showing or must state the reasons why 23

24 1 Petitioner’s reliance on Sanders v. United States is unavailing, as Sanders has been superseded by the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, and is 25 therefore no longer applicable. Rather, under 28 U.S.C. § 2244(b), “[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall 26 move in the appropriate court of appeals for an order authorizing the district court to consider the 27 application.” 28 U.S.C. § 2244(b)(3). See also 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as provided in section 2244 [28 USCS § 2244] by a panel of the 28 appropriate court of appeals….”). 1 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 2 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 3 jurists of reason would find it debatable whether the district court was correct in its procedural 4 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 5 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 6 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 7 set forth in the magistrate judge’s Findings and Recommendations (ECF No. 6), the Court finds 8 that issuance of a certificate of appealability is not warranted in this case. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The Findings and Recommendations, filed September 17, 2019 (ECF No. 6), are 11 adopted in full; and 12 2. The Petition (ECF No. 1) is DISMISSED pursuant to 28 U.S.C. § 2244(b)(3) as a 13 second or successive habeas corpus application; and 14 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 15 2253. 16 IT IS SO ORDERED. 17 Dated: November 12, 2019 18 19 20 21 22 23 24 25 26 27 28