(HC) Gaston v. Pickett ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY W. GASTON, No. 2:21-CV-0727-WBS-DMC-P 12 Petitioner, 13 v. ORDER 14 J. PICKETT, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 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 July 25, 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. No objections to the findings and recommendations have been 23 filed. 24 The Court has reviewed the file and finds the findings and recommendations to be 25 supported by the record and by the Magistrate Judge's analysis. 26 / / / 27 / / / 28 / / / 1 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 25, 2022, are adopted in full; 18 2. This action is dismissed without prejudice for lack of prosecution and 19 | failure to comply with court rules and orders; 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: October 4, 2022 Llu 4k. 23 WILLIAMB.SHUBB | 54 UNITED STATES DISTRICT JUDGE 25 26 27 28