(HC) Cole v. Cates ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER LEE COLE, No. 2:22-cv-00198-TLN-DMC 12 Petitioner, ORDER 13 v. 14 B. CATES, 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 19 pursuant to Eastern District of California local rules. 20 On September 6, 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 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 September 6, 2022, are ADOPTED IN 18 FULL; 19 2. Respondent’s motion to dismiss (ECF No. 13) is GRANTED; 20 3. This action is DISMISSED as an improperly filed second or successive petition; 21 4. The Court declines to issue a certificate of appealability; and 22 5. The Clerk of the Court is directed to enter judgment and close this file. 23 | DATED: December 29, 2022 24 / 25 “ Lu 26 Troy L. Nuhlep> United States District Judge 28