(HC) Daniels v. Hatton ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY GENE DANIELS, No. 2:16-cv-3025 MCE AC P 12 Petitioner, 13 v. ORDER 14 SHAWN HATTON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding through counsel, has filed this application 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 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 22, 2022, the magistrate judge filed findings and recommendations herein which 21 were served on all parties and which contained notice to all parties that any objections thereto 22 were to be filed within twenty-one (21) days. ECF No. 28. Petitioner has filed objections to the 23 findings and recommendations and requested a certificate of appealability. ECF No. 29. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 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. 4 | 22(b). Where the petition is denied on the merits, a certificate of appealability may issue 5 | under 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, and because the Court agrees 15 | that there was no denial of Petitioner’s constitutional rights for those same reasons, the Court 16 | finds that issuance of a certificate of appealability is not warranted in this case. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The findings and recommendations filed July 22, 2022 (ECF No. 28), are ADOPTED 19 | in full; 20 2. The petition for writ of habeas corpus (ECF No. 1) is DENIED; 21 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. 22 | § 2253; and 23 4. The Clerk of Court is directed to close the case. 24 IT IS SO ORDERED. 25 | Dated: September 22, 2022 Eo 26 f{ late rf LEK. 7 SENIOR UNITED STATES DISTRICT JUDGE 28