(HC) Stewart v. Macomber ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, No. 1:20-cv-00221-DAD-EPG (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATION 14 J. MACOMBER, et al., (Doc. No. 6) 15 Respondents. 16 17 Petitioner Gregory W. Stewart is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 20 On February 25, 2020, the assigned magistrate judge issued findings and recommendation 21 recommending that the pending petition be dismissed as an unauthorized successive petition. 22 (Doc. No. 6.) The findings and recommendation were served on petitioner and contained notice 23 that any objections were to be filed within thirty (30) days of that order’s date of service. (Id. at 24 3–4.) On March 4, 2020, petitioner filed timely objections. (Doc. No. 8.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 27 objections, the court concludes that the findings and recommendation are supported by the record 28 and proper analysis. 1 Petitioner’s objections list several of his case numbers in this court and the Ninth Circuit 2 Court of Appeals in which he has sought to challenge the same underlying criminal conviction. 3 (See generally Doc. No. 8.) The objections also include copies of the court’s previous orders in 4 this action, as well as docket sheets and copies of court orders in petitioner’s other cases. (Id.) In 5 other words, petitioner does not raise any new or persuasive points in his objections. As such, the 6 undersigned will adopt the magistrate judge’s findings and recommendation in full. 7 Finally, the court declines to issue a certificate of appealability. A petitioner seeking writ 8 of habeas corpus has no absolute right to appeal; he may appeal only in limited circumstances. 9 See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Rule 11 of the Rules 10 Governing Section 2254 Cases requires that a district court issue or deny a certificate of 11 appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22- 12 1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability 13 will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional 14 right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of 15 reason could disagree with the district court’s resolution of his constitutional claims or that jurists 16 could conclude the issues presented are adequate to deserve encouragement to proceed further.” 17 Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). 18 In the present case, the court finds that reasonable jurists would not find the court’s 19 rejection of petitioner’s claims to be debatable or conclude that the petition should proceed 20 further. Thus, the court declines to issue a certificate of appealability. 21 Accordingly: 22 1. The findings and recommendation issued on February 25, 2020 (Doc. No. 6) are 23 adopted in full; 24 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 25 ///// 26 ///// 27 ///// 28 ///// 4.6U UV VME et ANE NS MMU OIRO eer AY VM VI 1 3. The Clerk of the Court is directed to close the case; and 2 4. The court declines to issue a certificate of appealability. 3 | IT IS SO ORDERED. 23 Dated: _ June 26, 2020 VL AL oye 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28