Toyebo v. Hubard

Filing 18

ORDER signed by Judge John A. Mendez on 10/22/2014 ADOPTING 17 Findings and Recommendations in full and GRANTING 16 Motion to Dismiss. No Certificate of Appealability shall issue. CASE CLOSED. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIAN TOYEBO,

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Petitioner,

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No. 2:12-cv-2268-JAM-CMK-P

v.

ORDER

S. HUBARD,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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

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Magistrate Judge pursuant to Eastern District of California local rules.
On August 15, 2014, the Magistrate Judge filed findings and recommendations

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herein which were served on the parties and which contained notice that the parties may file

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objections within a specified time. No objections to the findings and recommendations have been

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filed.

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The court has reviewed the file and finds the findings and recommendations to be
supported by the record and y the Magistrate Judge’s analysis.
Pursuant to Rule 11(a) of the Federal rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.
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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

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appealability indicating which issues satisfy the required showing or must state the reasons why

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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on

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procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir.

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2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons

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set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of

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a certificate of appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 15, 2014, are adopted in full;

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2. Respondent’s unopposed motion to dismiss (Doc. 16) is granted;

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3. No certificate of appealability shall issue; and

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4. The Clerk of the Court is directed to enter judgment and close this case.

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DATED: October 22, 2014

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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