(HC) Mueck v. Anglea ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MUECK, No. 2:18-cv-02619-TLN-EFB 12 Petitioner, 13 v. ORDER 14 HUNTER ANGLEA, 15 Respondent. 16 17 Petitioner Steven Mueck (“Petitioner”), a state prisoner proceeding pro se, has filed an 18 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 19 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 6, 2019, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. (ECF No. 23.) Neither 23 party has filed objections to the Findings and Recommendations.1 24 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 25 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 27 1 The Court notes Petitioner did not file any objections to the Findings and Recommendations even after he requested, and was granted, an extension of time to do so. (See 28 ECF Nos. 24, 25.) 1 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 2 1983); see also 28 U.S.C. § 636(b)(1). 3 Having reviewed the file under the applicable legal standards, the Court finds the Findings 4 and Recommendations to be supported by the record and by the magistrate judge’s analysis. 5 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 6 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 7 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 8 Where the petition is denied on the merits, a certificate of appealability may issue under 28 9 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 10 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 11 appealability indicating which issues satisfy the required showing or must state the reasons why 12 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 13 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 14 jurists of reason would find it debatable whether the district court was correct in its procedural 15 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 16 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 17 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). 18 For the reasons set forth in the magistrate judge’s Findings and Recommendations (ECF 19 No. 23), the Court finds that issuance of a certificate of appealability is not warranted in this case. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The Findings and Recommendations, filed August 6, 2019 (ECF No. 23), are adopted 22 in full; 23 2. Respondent’s Motion to Dismiss (ECF No. 14) is GRANTED; 24 3. The Petition (ECF No. 1) is DISMISSED for failure to state a cognizable federal 25 question; and 26 /// 27 /// 28 /// 1 4. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. 2 § 2253. 3 IT IS SO ORDERED. 4 Dated: December 18, 2019 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28