(HC) Hickman v. People of State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUANE HICKMAN, No. 2:18-cv-02967-KJM-CKD P 12 Petitioner, 13 v. ORDER 14 PEOPLE OF STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has 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 5, 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. ECF No. 52. Petitioner has 23 filed objections to the findings and recommendations. ECF No. 53. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. 27 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court has 28 considered whether to issue a certificate of appealability. Before petitioner can appeal this 1 || decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 2 || Where the petition is denied on the merits, a certificate of appealability may issue under 28 3 || US.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 4 | constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 5 || appealability indicating which issues satisfy the required showing or must state the reasons why 6 || sucha certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 7 || procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 8 | jurists of reason would find it debatable whether the district court was correct in its procedural 9 || ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 10 || claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 11 | 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 478 (2000)). For the reasons set forth in the 12 || magistrate judge’s findings and recommendations, the court finds issuance of a certificate of 13 || appealability is not warranted in this case. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed December 5, 2022, ECF No. 52, are adopted 16 |} in full. 17 2. Petitioner’s application for a writ of habeas corpus is denied. 18 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 19 | § 2253. 20 4. The Clerk of Court is directed to close this case. 21 || DATED: January 12, 2023. 22 23 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 25 26 27 28