Smith v. McDonald

Filing 53

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/15/2103 RECOMMENDING that the stay imposed by 51 Order be lifted; RECOMMENDING that Petitioner's Request to Dismiss his Strickland ineffective assistance of counsel claim be granted; RECOMMENDING that a Certificate of Appealability should not issue in regard to Petitioner's Strickland claim; RECOMMENDING that a Certificate of Appealability be granted as to Petitioner's Chronic claim; RECOMMENDING that final judgment be entered. Referred to Chief Judge Morrison C. England, Jr. Objections due within 20 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES RAY SMITH,

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Petitioner,

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vs.

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No. CIV S-09-2967 MCE GGH P

M. MCDONALD,

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Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding with counsel, has filed this application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On December 14, 2012, petitioner filed an unopposed request to lift stay, dismiss

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the Strickland claim, and enter judgment. This court had previously denied the Cronic claim, and

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stayed the case for exhaustion of the Strickland claim in the state courts. (Dkt. no. 50.)

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue.

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Fed. R. App. P. 22(b). Based on petitioner’s request for dismissal of the Strickland claim, a
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certificate of appealability should be not be issued in regard to that claim. However, the

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undersigned recommends that a certificate of appealability be granted as to the Chronic claim.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The stay imposed by order of April 9, 2012, (dkt. no. 51), be lifted;

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2. Petitioner’s request to dismiss his Strickland ineffective assistance of counsel

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claim be granted;

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3. A certificate of appealability should not be issued in regard to the Strickland
claim;
4. A certificate of appealability be granted for the Chronic claim; and

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4. Final judgment be entered.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 15, 2013

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/Smit2967.805hc.wpd

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