(HC) McCavitt v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUAH MCCAVITT, No. 2:22-cv-01926 KJM KJN P 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 12, 2022, the magistrate judge filed findings and recommendations, which 21 were served on petitioner and which contained notice to petitioner that any objections to the 22 findings and recommendations were to be filed within fourteen days. F&R, ECF No. 10. 23 Petitioner filed objections to the findings and recommendations and asked this court to reject the 24 magistrate judge’s findings and recommendations, or, in the alternative, grant petitioner “an 25 opportunity to amend his petition.” Obj. at 5, ECF No. 13. Amendment in this case would be 26 futile, so the court denies this request. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 27 (9th Cir.2008). Petitioner cannot amend his claim challenging a state court’s application of state 28 sentencing laws to state a cognizable federal claim. See F&R at 3–4. Additionally, petitioner 1 | cannot amend his complaint to show the state court’s alleged error was “so arbitrary or capricious 2 || as to constitute an independent due process [violation].” Richmond v. Lewis, 506 U.S. 40, 50 3 | (1992); see also F&R at 4. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 || court has conducted a de novo review of this case. Having reviewed the file, the court finds the 6 || findings and recommendations to be supported by the record and by the proper analysis. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The findings and recommendations filed December 12, 2022, are adopted in full; 9 2. The petition is dismissed with prejudice; and 10 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 11 | § 2253. 12 | DATED: March 22, 2023. 13 14 ee 3 CHIEF ED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28