(HC) Stewart v. Macomber
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GREGORY W. STEWART,
No. 1:21-cv-00063-DAD-HBK (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
(Doc. No. 9)
Petitioner Gregory W. Stewart is a state prisoner proceeding pro se and in forma pauperis
with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter
was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
On March 10, 2021, the assigned magistrate judge issued findings and recommendations,
recommending that the pending petition be dismissed because it is successive and petitioner has
not obtained leave from the Ninth Circuit to proceed with a second or successive petition. (Doc.
No. 9.) The pending findings and recommendations were served on petitioner with notice that
any objections thereto were to be filed within thirty (30) days of service. (Id. at 3.) On April 7,
2021, petitioner filed a motion for reconsideration and objections to the findings and
recommendations, which the court construes as petitioner’s objections to the findings and
recommendations. (Doc. No. 11.) Those objections do not appear to address the fact that
petitioner has not obtained an order from the Ninth Circuit authorizing him to file a second or
In addition, having concluded that the pending petition must be dismissed, the court now
turns to whether a certificate of appealability should issue. A state prisoner seeking a writ of
habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an
appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36
(2003); 28 U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds
without reaching the underlying constitutional claims, the court should issue a certificate of
appealability “if jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In the present case, the court finds that reasonable jurists would not find the court’s determination
that the petition should be dismissed debatable or wrong, or that petitioner should be allowed to
proceed further. Therefore, the court declines to issue a certificate of appealability.
The findings and recommendations issued on March 10, 2021 (Doc. No. 9) are
adopted in full;
The petition for writ of habeas corpus is dismissed;
The court declines to issue a certificate of appealability; and
The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
April 23, 2021
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?