(HC) Price v. Warden ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT RICHARD PRICE, No. 2:22-CV-00028-KJM-DMC-P 12 Petitioner, ORDER 13 v. 14 WARDEN, 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 September 27, 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. Timely objections to the findings and recommendations have been 23 filed. 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 ///// 28 ///// ] 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 issuance of a 15 | certificate of appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed September 27, 2022, ECF No. 23, 18 || are adopted in full; 19 2. Respondent’s unopposed motion to dismiss, ECF No. 19, is granted; 20 3. This action is dismissed; 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: January 12, 2023. 24 25 l tie / ¢ os CHIEF ONT] ED STATES DISTRICT JUDGE 27 28