(HC) Beavers v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS J. BEAVERS, No. 2:19-cv-00353-TLN-GGH 12 Petitioner, 13 v. ORDER 14 STU SHERMAN, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 26, 2019, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within twenty-one days. (ECF No. 18.) 23 Neither party has filed objections to the findings and recommendations. 24 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 25 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 27 1983); see also 28 U.S.C. § 636(b)(1). Having reviewed the file under the applicable legal 28 / / / 1 standards, the Court finds the Findings and Recommendations to be supported by the record and 2 by the magistrate judge’s analysis. 3 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 4 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 5 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 6 Where the petition is denied on the merits, a certificate of appealability may issue under 28 7 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 8 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 9 appealability indicating which issues satisfy the required showing or must state the reasons why 10 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 11 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 12 jurists of reason would find it debatable whether the district court was correct in its procedural 13 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 14 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 15 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 16 set forth in the magistrate judge’s Findings and Recommendations (ECF No. 18), the Court finds 17 that issuance of a certificate of appealability is not warranted in this case. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Findings and Recommendations, filed September 26, 2019 (ECF No. 18), are 20 adopted in full; 21 2. Respondent’s Motion to Dismiss (ECF No. 9) is GRANTED; 22 3. The Petition (ECF No. 1) as it relates to the Placer County conviction (Case No. 62- 23 090968/F4511) is DISMISSED for lack of jurisdiction; the Petition as it relates to the Sacramento 24 County conviction (Case No. C073720) is DISMISSED as untimely; and 25 / / / 26 / / / 27 / / / 28 / / / 1 4. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2 2253. 3 IT IS SO ORDERED. 4 Dated: October 29, 2019 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28