Mark Evans v. Warden

Filing 26

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Dale S. Fischer for MOTION to Dismiss PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES 11 , Report and Recommendation (Issued), 25 IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge, and (2) the Court declines to issue a Certificate of Appealability (COA). (rh)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

7
8
9
10
11

MARK EVANS,

12

Petitioner,

13

v.

14

WARDEN,

15

Respondent.

)
)
)
)
)
)
)
)
)
)

No. CV 14-00712-DSF (VBK)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE

16
17

Pursuant to 28 U.S.C. §636, the Court has reviewed the Petition

18

for Writ of Habeas Corpus (“Petition”), the records and files herein,

19

and the Report and Recommendation of the United States Magistrate

20

Judge (“Report”).

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//

1

IT IS ORDERED that: (1) the Court accepts the findings and

2

recommendations of the Magistrate Judge, and (2) the Court declines to

3

issue a Certificate of Appealability (“COA”).1

4
5

4/1/15
DATED:
DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Under 28 U.S.C. §2253(c)(2), a Certificate of Appealability
may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Here, the Court has accepted the
Magistrate Judge’s finding and conclusion that the abstention doctrine
of Younger v. Harris, 401 U.S. 37, 45-46 (1971) is applicable and the
Petition is unexhausted. Thus, the Court’s determination of whether
a Certificate of Appealability should issue here is governed by the
Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.
Ct. 1595 (2000), where the Supreme Court held that, “[w]hen the
district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling.” 529 U.S. at 484. As the Supreme Court further explained:
“Section 2253 mandates that both showings be made before the
court of appeals may entertain the appeal. Each component
of the § 2253(c) showing is part of a threshold inquiry, and
a court may find that it can dispose of the application in
a fair and prompt manner if it proceeds first to resolve the
issue whose answer is more apparent from the record and
arguments.” Id. at 485.
Here, the Court finds that Petitioner has failed to make the
requisite showing that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”
2