(HC) Hammond v. Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DELVON HAMMOND, No. 2:19-cv-01578-TLN-EFB 12 Petitioner, 13 v. ORDER 14 WARDEN, 15 Respondent. 16 17 Petitioner Delvon Hammond (“Petitioner”), a state prisoner proceeding pro se, has filed 18 an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 19, 2020, the magistrate judge filed findings and recommendations which were 21 served on Petitioner and which contained notice to Petitioner that any objections to the findings 22 and recommendations were to be filed within fourteen days. (ECF No. 7.) Petitioner has not 23 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). 28 /// 1 Having reviewed the file under the applicable legal standards, the Court finds the Findings 2 and Recommendations to be supported by the record and 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)). 16 For the reasons set forth in the magistrate judge’s Findings and Recommendations (ECF 17 No. 7), the Court finds 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 March 19, 2020 (ECF No. 7), are adopted in 20 full; 21 2. This action is DISMISSED for lack of jurisdiction; 22 3. The Clerk is directed to close the case; and 23 4. The Court declines to issue a certificate of appealability. 24 IT IS SO ORDERED. 25 DATED: April 27, 2020 26 27 28