(HC) Perez v. Spearman ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAM PEREZ, No. 2:19-CV-1223-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 M. ELLIOT SPEARMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition 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 Eastern District of California local rules. 20 On April 25, 2022, the Magistrate Judge filed findings and recommendations, which were 21 served on the parties and which contained notice that the parties may file objections within the 22 time specified therein. No objections to the findings and recommendations have been filed. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 602 24 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 25 See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the 26 magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). 27 Having reviewed the file, the court finds the findings and recommendations to be supported by 28 the record and by the proper analysis. ] 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 April 25, 202, are adopted in full; 18 2. Petitioner’s petition for a writ of habeas corpus, ECF No. 1, is denied; 19 3. The Court declines to issue a certificate of appealability; and 20 4. The Clerk of the Court is directed to enter judgment and close this file. 21 || DATED: October 30, 2022. 22 23 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 25 26 27 28