(HC) Johnson v. Neuschmid ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD R. JOHNSON, No. 2:20-CV-1410-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 ROBERT NEUSCHMID, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by Eastern District of California local rules. 20 On March 12, 2021, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. No objections to the findings and recommendations have been 23 filed. 24 The court presumes that any findings of fact are correct. See Orand v. United 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 27 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 28 1 | court....”). Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record and by the proper analysis. 3 Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court 4 || has 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 || US.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 || sucha 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)). For the reasons 16 | set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of 17 || acertificate of appealability is not warranted in this case. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations filed March 12, 2021, are adopted in 20 | full; 21 2. Respondent’s unopposed motion to dismiss, ECF No. 17, is granted; 22 3. The Court declines to issue a certificate of appealability; and 23 4. The Clerk of the Court is directed to enter judgment and close this file. 24 | DATED: July 7, 2021. 25 26 l tie / ¢ os CHIEF ONT] ED STATES DISTRICT JUDGE 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28