McClendon v. California

Filing 7

ORDER ADOPTING 6 FINDINGS AND RECOMMENDATIONS and DISMISSING Petition as Successive; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, signed by District Judge Dale A. Drozd on 08/16/2017. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YACUB AVICENNA MCCLENDON,

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Petitioner,

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No. 1:17-cv-00030-DAD-MJS

v.
DEBBIE ASCUNCION,

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Respondent.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
PETITION AS SUCCESSIVE
(Doc. No. 6)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for

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the Eastern District of California.
On May 12, 2017, the assigned magistrate judge issued findings and recommendations

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recommending the petition for writ of habeas corpus be dismissed on the ground it is a second or

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successive petition and petitioner had not obtained leave from the Ninth Circuit Court of Appeals

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to proceed with such a petition. (Doc. No. 6.) The findings and recommendations were served on

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petitioner with notice that any objections thereto were to be filed within thirty (30) days of the

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date of service of the findings and recommendations. Petitioner has filed no objections and the

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time for doing so has passed.

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

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

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undersigned concludes that the magistrate judge’s findings and recommendations are supported

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by the record and proper analysis.

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

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Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal rules governing

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habeas cases brought by state prisoners require a district court issuing an order denying a habeas

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petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254

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Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made

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a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the

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certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a

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district court has rejected the constitutional claims on the merits, the showing required to satisfy

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§ 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find

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the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Additionally, for claims denied on procedural grounds, a

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certificate of appealability should issue “when the prisoner shows, at least, that jurists of reason

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would find it debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Id. Here, petitioner has not made such a showing. Accordingly, a certificate

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of appealability will not be issued.

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For these reasons:

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1. The findings and recommendations issued May 12, 2017 (Doc. No. 6) are adopted in full;

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2. The petition for writ of habeas corpus is dismissed as successive;

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3. The Clerk of the Court is directed to close the case; and

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4. The court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

August 16, 2017
UNITED STATES DISTRICT JUDGE

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