(HC) Stewart v. Macomber ( 2021 )

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-01541-NONE-JLT (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS § 2254 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 J. MACOMBER, Warden, (Doc. Nos. 1, 6) 15 Respondent. 16 17 Petitioner Gregory W. Stewart is a state prisoner proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition was referred 19 to a United States Magistrate Judge. See 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 6, 2020, the assigned magistrate judge concluded that the habeas petition is 21 a “second or successive” petition1 as defined by 28 U.S.C.A. § 2244, and must be dismissed 22 unless petitioner established that he had sought and obtained authorization from the Ninth Circuit 23 to file a “second or successive” petition.2 (See Doc. No. 6 at 1–2). Because petitioner failed to 24 obtain such authorization, the magistrate judge issued findings and recommendations 25 1 See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits.”). 26 27 2 See Tyler v. Cain, 533 U.S. 656, 661–62 (2001) (“If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all 28 cases.”). 1 recommended that this habeas petition be dismissed. (Id. at 3); see, e.g., Burton v. Stewart, 549 2 U.S. 147, 152 (2007) (“We conclude, though, that because the 2002 petition is a ‘second or 3 successive’ petition that Burton did not seek or obtain authorization to file in the District Court, 4 the District Court never had jurisdiction to consider it in the first place.”). 5 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the undersigned has 6 conducted a de novo review of the case. The court concludes that the magistrate judge’s findings 7 and recommendations are supported by the record and proper analysis. The court has also 8 considered petitioner’s objections to those findings and recommendations, but finds that 9 petitioner in those objections has failed to meaningfully address or contradict the analysis set 10 forth in the findings and recommendations. Accordingly, the pending findings and 11 recommendations will be adopted. 12 The court must now turn to whether a certificate of appealability should be issued. A 13 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 14 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 15 Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. Courts should issue a certificate of 16 appealability only if “reasonable jurists could debate whether (or, for that matter, agree that) the 17 petition should have been resolved in a different manner or that the issues presented were 18 ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 19 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the 20 court finds that reasonable jurists would not find the court’s determination that the petition should 21 be dismissed debatable or wrong, or that petitioner should be allowed to proceed further. 22 Therefore, issuing a certificate of appealability is not appropriate here. 23 Accordingly, the court orders as follows: 24 1. The findings and recommendations (Doc. No. 6), filed November 6, 2020, are 25 ADOPTED in full; 26 2. The petition for writ of habeas corpus (Doc. No. 1) is DISMISSED; 27 3. The court DECLINES to issue a certificate of appealability; and 28 ///// 1 4. The Clerk of Court is DIRECTED to assign a district judge to this case for the 2 purpose of closing the case and then to enter judgment and close the case. 3 | IT IS SO ORDERED. a 4 Li. wh F Dated: _ December 31, 2020 tn □ Soe 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