(HC) Hatchett v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL JEROME HATCHETT, No. 2:21-cv-00428-TLN-DB 12 Petitioner, 13 v. ORDER 14 KEN CLARK, 15 Respondent. 16 17 Petitioner Cecil Jerome Hatchett (“Petitioner”), a state prisoner proceeding pro se, has 18 filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On July 27, 2021, the magistrate judge filed findings and recommendations which were 22 served on Petitioner and which contained notice to Petitioner that any objections to the findings 23 and recommendations were to be filed within thirty days. (ECF No. 8.) Petitioner filed 24 objections to the findings and recommendations (ECF No. 9), which have been considered by the 25 Court. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 27 Court has conducted a de novo review of this case. See McDonnell Douglas Corp. v. Commodore 28 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 1 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Having reviewed the file under the 2 applicable legal standards, the Court finds the findings and recommendations to be supported by 3 the record and by the magistrate judge’s analysis. 4 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 5 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 6 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 7 Where the petition is denied on the merits, a certificate of appealability may issue under 28 8 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 9 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 10 appealability indicating which issues satisfy the required showing or must state the reasons why 11 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 12 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 13 jurists of reason would find it debatable whether the district court was correct in its procedural 14 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 15 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 16 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484–85 (2000)). For the reasons set forth in the 17 Findings and Recommendations (ECF No. 8), the Court finds that issuance of a certificate of 18 appealability is not warranted in this case. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The Findings and Recommendations filed July 27, 2021 (ECF No. 8), are ADOPTED 21 IN FULL; 22 2. The Petition is DISMISSED with prejudice for the reasons set forth in the Findings and 23 Recommendations; 24 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 25 2253; and 26 4. The Clerk of Court is directed to close this case. 27 /// 28 /// 1 IT IS SO ORDERED. 2 | Dated: September 7, 2021 3 4 f /) 5 “ : J Vt 6 Troy L. Nuhlep ] 4 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28