(HC)Mann v. Garza ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHAN LOUIS MANN, SR., No. 2:20-cv-01799-TLN-AC 12 Petitioner, 13 v. ORDER 14 GARZA, 15 Respondent. 16 17 Petitioner Nathan Louis Mann, Sr. (“Petitioner”), formerly a county jail inmate 18 proceeding pro se, has filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 19 2254. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 20 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 4. 2020, the magistrate judge issued findings and recommendations herein 22 which were served on Petitioner and which contained notice to Petitioner that any objections to 23 the findings and recommendations were to be filed within twenty-one days. (ECF No. 5.) 24 Petitioner has not filed any objections to the findings and recommendations. 25 Although it appears from the file that Petitioner’s copy of the Findings and 26 Recommendations was returned, Petitioner was properly served. It is Petitioner’s responsibility 27 to keep the Court apprised of his current address at all times. Pursuant to Local Rule 182(f), 28 service of documents at the record address of the party is fully effective. 1 The Court presumes that any findings of fact are correct. See Orand v. United States, 602 2 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 3 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983); see also 28 4 U.S.C. § 636(b)(1). Having reviewed the file under the applicable legal standards, the Court finds 5 the Findings and Recommendations to be supported by the record and by the magistrate judge’s 6 analysis. 7 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 8 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 9 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 10 Where the petition is denied on the merits, a certificate of appealability may issue under 28 11 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 13 appealability indicating which issues satisfy the required showing or must state the reasons why 14 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 15 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 16 jurists of reason would find it debatable whether the district court was correct in its procedural 17 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 18 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 19 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 20 set forth in the Findings and Recommendations (ECF No. 5), the Court finds that issuance of a 21 certificate of appealability is not warranted in this case. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The Findings and Recommendations issued December 4, 2020 (ECF No. 5), are 24 adopted in full; 25 2. This action is DISMISSED without prejudice for failure to prosecute. See E.D. Cal. 26 L.R. 183(b); and 27 /// 28 /// 1 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2 2253. 3 IT IS SO ORDERED. 4 DATED: January 13, 2021 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28