(HC) Alspaugh v. Superior Court of CA ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH E. ALSPAUGH, No. 2:22-CV-0761-WBS-DMC 12 Petitioner, 13 v. ORDER 14 SUPERIOR COUT OF CALIFORNIA, et al., 15 Respondents. 16 17 18 Petitioner, who is proceeding pro se, brings this petition for a writ of habeas 19 corpus. The matter was referred to a United States Magistrate Judge pursuant to Eastern District 20 of California local rules. 21 On November 15, 2022, the Magistrate Judge filed findings and recommendations 22 herein which were served on the parties and which contained notice that the parties may file 23 objections within the time specified therein. No objections to the findings and recommendations 24 have been filed. 25 The Court has reviewed the file and finds the findings and recommendations to be 26 supported by the record and by the Magistrate Judge's analysis. 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 November 15, 2022, are adopted 18 | in full; 19 2. This action is dismissed without prejudice for lack of prosecution and 20 | failure to comply with court rules and orders; 21 3. The Court declines to issue a certificate of appealability; and 22 4. The Clerk of the Court is directed to enter judgment and close this file. 23 || Dated: December 30, 2022 / - 24 th an Vi oh 5 UNITED STATES DISTRICT JUDGE 26 27 28