(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-01323-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE 14 J. MACOMBER, CERTIFICATE OF APPEALABILITY, AND DIRECTING THE CLERK OF COURT TO 15 Respondent. ASSIGN DISTRICT JUDGE FOR PURPOSE OF CLOSING CASE 16 (Doc. Nos. 1, 6) 17 18 19 Petitioner Gregory W. Stewart is a state prisoner proceeding in propria persona with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant federal habeas 21 petition was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 22 and Local Rule 302. After reviewing the petition under Rule 4 of the Rules Governing § 2254 23 Cases, the assigned magistrate judge found that petitioner had presented a “second or successive” 24 petition within the meaning of 28 U.S.C. § 2244(b)(1) and, as a result, recommended that the 25 petition be dismissed. (Doc. No. 6 at 1–2.) Petitioner objected to the magistrate judge’s findings 26 and recommendations on October 7, 2020. (Doc. No. 9.) 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 28 de novo review of the case. Having carefully reviewed the entire file, the court finds that the 1 | magistrate judge’s findings and recommendations are supported by the record and proper analysis 2 | and that plaintiffs objections fail to meaningfully address the magistrate judge’s analysis. 3 The court now turns to whether a certificate of appealability should be issued. A 4 | petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 5 | denial of his petition, and an appeal is only allowed in certain circumstances. See Miller-El v. 6 | Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 7 | appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 8 || petition should have been resolved in a different manner or that the issues presented were 9 | ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 10 | (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 11 || court finds that reasonable jurists would not find the court’s determination that the petition should 12 | be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 13 | Therefore, the court declines to issue a certificate of appealability. 14 Accordingly, the court ORDERS as follows: 15 1. The findings and recommendations (Doc. No. 6), filed September 18, 2020, is ADOPTED 16 in full; 17 2. The petition for writ of habeas corpus is DISMISSED; 18 3. The court DECLINES to issue a certificate of appealability; and 19 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the purpose of 20 closing the case and then to close this case. 21 | IT IS SOORDERED. me □ Dated: _ October 19, 2020 a L A 5 anys 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28