Dews v. Biter

Filing 27

ORDER ADOPTING 25 Findings and Recommendations; ORDER DENYING Petitioner's 24 Motion for Reconsideration; ORDER DECLINING to Issue a Certificate of Appealability, signed by District Judge Anthony W. Ishii on 9/27/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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6 CLARENCE LEON DEWS,
Petitioner,

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v.

9 MARTIN BITER, Warden of Kern
Valley State Prison,
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Respondent.
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Case No. 1:13-cv-00626-AWI-SKO-HC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (DOC. 25)
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION (DOC. 24)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se and in forma

15 pauperis with a petition for writ of habeas corpus pursuant to 28
16 U.S.C. § 2254. The matter has been referred to the Magistrate Judge
17 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On August 27, 2013, the Magistrate Judge filed findings and
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19 recommendations that Petitioner’s motion for reconsideration of the
20 Court’s dismissal of the petition as a successive petition and
21 decision not to issue a certificate of appealability. The findings
22 and recommendations were served on the parties on the same date, and

23 they informed the parties that objections could be filed within
24 thirty (30) days of service, and any reply could be filed no later
25 than fourteen (14) days after service of any objections.
Petitioner filed objections on September 17, 2013. No reply
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27 will be filed because Petitioner is the only party who has appeared
28 in the action.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C),

2 this Court has conducted a de novo review of the case.

The

3 undersigned has carefully reviewed the entire file, including
4 Petitioner’s objections, and has considered the objections.

The

5 undersigned has determined there is no need to modify the findings
6 and recommendations based on the points raised in the objections.
7 The Court finds that the report and recommendations are supported by

8 the record and proper analysis.
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Further, unless a circuit justice or judge issues a certificate

10 of appealability, an appeal may not be taken to the Court of Appeals
11 from the final order in a habeas proceeding in which the detention
12 complained of arises out of process issued by a state court.

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13 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
14 (2003).

A certificate of appealability may issue only if the

15 applicant makes a substantial showing of the denial of a
16 constitutional right.

' 2253(c)(2).

Under this standard, a

17 petitioner must show that reasonable jurists could debate whether
18 the petition should have been resolved in a different manner or that
19 the issues presented were adequate to deserve encouragement to
20 proceed further.

Miller-El v. Cockrell, 537 U.S. at 336 (quoting

21 Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

A certificate should

22 issue if the Petitioner shows that jurists of reason would find it

23 debatable whether the petition states a valid claim of the denial of
24 a constitutional right or that jurists of reason would find it
25 debatable whether the district court was correct in any procedural
26 ruling.
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Slack v. McDaniel, 529 U.S. at 483-84.

In determining this issue, a court conducts an overview of the

28 claims in the habeas petition, generally assesses their merits, and
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1 determines whether the resolution was wrong or debatable among
2 jurists of reason.

Id.

It is necessary for an applicant to show

3 more than an absence of frivolity or the existence of mere good
4 faith; however, it is not necessary for an applicant to show that
5 the appeal will succeed.

Miller-El v. Cockrell, 537 U.S. at 338.

A district court must issue or deny a certificate of

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7 appealability when it enters a final order adverse to the applicant.

8 Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does

9 not appear that reasonable jurists could debate whether the petition
10 should have been resolved in a different manner.

Petitioner has not

11 made a substantial showing of the denial of a constitutional right.
12 Accordingly, the Court will decline to issue a certificate of
13 appealability with respect to the Court’s ruling on Petitioner’s
14 motion for reconsideration.
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Accordingly, it is ORDERED that:

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1.

The findings and recommendations filed on August 27, 2013,

17 are ADOPTED in full; and
2.

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The Petitioner’s motion for reconsideration of the

19 dismissal of the petition and decision not to issue a certificate of
20 appealability is DENIED; and
3.

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The Court DECLINES to issue a certificate of appealability.

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24 IT IS SO ORDERED.
25 Dated: September 27, 2013
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SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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