(HC) Stewart v. Macomber
Filing
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ORDER ADOPTING 9 Findings and Recommendations and Dismissing Petition, Certificate of Appealability Decline, signed by District Judge Dale A. Drozd on 04/23/2021. CASE CLOSED. (Maldonado, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GREGORY W. STEWART,
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Petitioner,
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v.
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J. MACOMBER,
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No. 1:21-cv-00063-DAD-HBK (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
PETITION
Respondent.
(Doc. No. 9)
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Petitioner Gregory W. Stewart is a state prisoner proceeding pro se and in forma pauperis
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with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter
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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rule 302.
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On March 10, 2021, the assigned magistrate judge issued findings and recommendations,
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recommending that the pending petition be dismissed because it is successive and petitioner has
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not obtained leave from the Ninth Circuit to proceed with a second or successive petition. (Doc.
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No. 9.) The pending findings and recommendations were served on petitioner with notice that
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any objections thereto were to be filed within thirty (30) days of service. (Id. at 3.) On April 7,
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2021, petitioner filed a motion for reconsideration and objections to the findings and
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recommendations, which the court construes as petitioner’s objections to the findings and
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recommendations. (Doc. No. 11.) Those objections do not appear to address the fact that
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petitioner has not obtained an order from the Ninth Circuit authorizing him to file a second or
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successive petition.
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In addition, having concluded that the pending petition must be dismissed, the court now
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turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of
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habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an
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appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36
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(2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds
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without reaching the underlying constitutional claims, the court should issue a certificate of
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appealability “if jurists of reason would find it debatable whether the petition states a valid claim
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of the denial of a constitutional right and that jurists of reason would find it debatable whether the
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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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In the present case, the court finds that reasonable jurists would not find the court’s determination
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that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to
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proceed further. Therefore, the court declines to issue a certificate of appealability.
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Accordingly,
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1.
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The findings and recommendations issued on March 10, 2021 (Doc. No. 9) are
adopted in full;
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2.
The petition for writ of habeas corpus is dismissed;
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3.
The court declines to issue a certificate of appealability; and
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4.
The Clerk of the Court is directed to close this case.
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IT IS SO ORDERED.
Dated:
April 23, 2021
UNITED STATES DISTRICT JUDGE
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