(HC) Dukes v. Jackson ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN DUKES, No. 2:20-cv-00298-TLN-DMC 12 Petitioner, 13 v. ORDER 14 RICHARD JACKSON, 15 Respondent. 16 17 Petitioner Melvin Dukes (“Petitioner”), a state prisoner proceeding pro se, brings this 18 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 1, 2020, the magistrate judge filed findings and recommendations which were 21 served on Petitioner and which contained notice that Petitioner may file objections within the 22 time specified therein. (ECF No. 6.) That order further cautioned Petitioner that failure to file 23 objections could waive the right to appeal. (Id. at 2.) No objections to the findings and 24 recommendations have been filed. 25 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 26 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 27 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 28 1983); see also 28 U.S.C. § 636(b)(1). 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. 6), 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 April 1, 2020 (ECF No. 6), are adopted in 20 full; 21 2. This action is DISMISSED without prejudice for failure to prosecute and failure to 22 comply with Court rules and orders; 23 3. No Certificate of Appealability shall be issued; and 24 4. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. 26 DATED: June 15, 2020 27 28