(HC) Millner v. Frauenheim ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES W. MILLNER, No. 2:19-cv-01311-TLN-DMC 12 Petitioner, 13 v. ORDER 14 SCOTT FRAUENHEIM, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to Eastern District of California local rules. 20 On March 21, 2022, the Magistrate Judge filed findings and recommendations herein 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. (ECF No. 34.) Timely objections to the findings and 23 recommendations have been filed. (ECF No. 35.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 25 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 Court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 /// 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 2 | considered whether to issue a certificate of appealability. Before Petitioner can appeal this 3 | decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 4 | Where the petition is denied on the merits, a certificate of appealability may issue under 28 5 | 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 March 21, 2022, (ECF No. 34) are 18 | adopted in full; 19 2. Petitioner’s Petition for a Writ of Habeas Corpus, (ECF No. 1), is DENIED; 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: February 7, 2023 ry /) 23 “ \/ fb 24 — AWN ok Troy L. Nunley 25 United States District Judge 26 27 28