McClendon v. California

Filing 7


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YACUB AVICENNA MCCLENDON, 12 Petitioner, 13 14 No. 1:17-cv-00030-DAD-MJS v. DEBBIE ASCUNCION, 15 Respondent. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING PETITION AS SUCCESSIVE (Doc. No. 6) 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for 20 the Eastern District of California. On May 12, 2017, the assigned magistrate judge issued findings and recommendations 21 22 recommending the petition for writ of habeas corpus be dismissed on the ground it is a second or 23 successive petition and petitioner had not obtained leave from the Ninth Circuit Court of Appeals 24 to proceed with such a petition. (Doc. No. 6.) The findings and recommendations were served on 25 petitioner with notice that any objections thereto were to be filed within thirty (30) days of the 26 date of service of the findings and recommendations. Petitioner has filed no objections and the 27 time for doing so has passed. 28 ///// 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 2 conducted a de novo review of the case. Having carefully reviewed the entire file, the 3 undersigned concludes that the magistrate judge’s findings and recommendations are supported 4 by the record and proper analysis. 5 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 6 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 7 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal rules governing 8 habeas cases brought by state prisoners require a district court issuing an order denying a habeas 9 petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 10 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made 11 a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 12 certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a 13 district court has rejected the constitutional claims on the merits, the showing required to satisfy 14 § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find 15 the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). Additionally, for claims denied on procedural grounds, a 17 certificate of appealability should issue “when the prisoner shows, at least, that jurists of reason 18 would find it debatable whether the petition states a valid claim of the denial of a constitutional 19 right and that jurists of reason would find it debatable whether the district court was correct in its 20 procedural ruling.” Id. Here, petitioner has not made such a showing. Accordingly, a certificate 21 of appealability will not be issued. 22 For these reasons: 23 1. The findings and recommendations issued May 12, 2017 (Doc. No. 6) are adopted in full; 24 2. The petition for writ of habeas corpus is dismissed as successive; 25 ///// 26 ///// 27 ///// 28 ///// 2 1 3. The Clerk of the Court is directed to close the case; and 2 4. The court declines to issue a certificate of appealability. 3 4 IT IS SO ORDERED. Dated: August 16, 2017 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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