(HC) Sloan v. Sherman ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WARREN HERMAN SLOAN, No. 2:19-cv-02508-KJM-DMC-P 12 Petitioner, ORDER 13 v. 14 JEFF LYNCH, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se and in forma pauperis, brings this petition for 18 a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge as provided by Eastern District of California local rules. 20 On October 19, 2022, the magistrate judge filed findings and recommendations, which 21 were served on the parties and which contained notice that the parties may file objections within 22 the 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, 478 (2000)). For the reasons set forth in the 14 | magistrate judge’s findings and recommendations, the court finds that issuance of a certificate of 15 || appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed October 19, 2022, ECF No. 23, 18 || are adopted in full; 19 2. Petitioner’s amended petition for a writ of habeas corpus, ECF No. 13, is 20 | denied; 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: January 12, 2023. 24 25 l tie / ¢ os CHIEF ONT] ED STATES DISTRICT JUDGE 27 28