Xiong v. Biter

Filing 19

ORDER Adopting Findings and Recommendation 18 , signed by District Judge Anthony W. Ishii on 6/10/15. The Court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-02078 AWI MJS HC
KOUA XIONG,

ORDER ADOPTING
Petitioner, RECOMMENDATION

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v.

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FINDINGS

AND

[Docs. 14, 18]

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MARTIN BITER,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
On

March

30,

2015,

the

Magistrate

Judge

issued

a

Findings

and

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Recommendation that Respondent's Motion to Dismiss be GRANTED. This Findings

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and Recommendation was served on all parties with notice that any objections were to

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be filed within thirty (30) days of the date of service of the order. Neither party filed

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objections.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has

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conducted a de novo review of the case. Having carefully reviewed the entire file, the

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Court concludes that the Magistrate Judge's Findings and Recommendation is

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supported by the record and proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendation issued March 30, 2015, is ADOPTED;

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2.

Respondent’s Motion to Dismiss is GRANTED;

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3.

The Petition for Writ of Habeas Corpus is DISMISSED with prejudice as

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untimely; and
4.

The Court DECLINES to issue a Certificate of Appealability. 28 U.S.C. §

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2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a

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COA, petitioner must show: (1) that jurists of reason would find it debatable

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whether the petition stated a valid claim of a denial of a constitutional right;

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and (2) that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,

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484 (2000). In the present case, jurists of reason would not find debatable

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whether the petition was properly dismissed with prejudice as time-barred

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under 28 U.S.C. § 2244(d)(1). Petitioner has not made the required

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substantial showing of the denial of a constitutional right.

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IT IS SO ORDERED.
Dated: June 10, 2015
SENIOR DISTRICT JUDGE

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