(HC) Banner v. D.V.I. ( 2021 )

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 WALTER BANNER, No. 2:20-CV-0563-KJM-DMC-P 11 Petitioner, 12 v. ORDER 13 D.V.I., 14 Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 18 Magistrate Judge pursuant to Eastern District of California local rules. 19 On July 26, 2021, the Magistrate Judge filed findings and recommendations herein 20 which were served on the parties and which contained notice that the parties may file objections 21 within the time specified therein. No objections to the findings and recommendations have been 22 filed. 23 The court presumes that any findings of fact are correct. See Orand v. United 24 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 25 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 26 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 27 court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 28 supported by the record and by the proper analysis. ] Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 2 || Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 3 || this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 4 || 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 5 || 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 || constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 7 || appealability indicating which issues satisfy the required showing or must state the reasons why 8 | such acertificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 9 || procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 10 || jurists of reason would find it debatable whether the district court was correct in its procedural 11 | ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 12 || claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 13 || 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 14 | set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 15 || acertificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed July 26, 2021, are adopted in full; 18 2. This action is dismissed without prejudice for failure to comply with courts 19 || orders and rules; 20 3. The Court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to enter judgment and close this file. 22 || DATED: September 8, 2021. 23 24 l ti / ¢ q_/ 35 CHIEF NT] ED STATES DISTRICT JUDGE 26 27 28