Dalby v. Diaz

Filing 56

ORDER signed by District Judge Troy L. Nunley on 10/21/2020 ADOPTING 55 Findings and Recommendations in full. Petitioner's Application for a Writ of Habeas Corpus is DENIED as moot as a result of his death on 5/9/2019. The Clerk of the Court is directed to close this case. The Court DECLINES to issue Certificate of Appealability. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM DALBY,

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No. 2:13-cv-01169-TLN-KJN

Petitioner,

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v.

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RALPH DIAZ,

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ORDER

Respondent.

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Petitioner William Dalby (“Petitioner”), a state prisoner proceeding pro se, has filed an

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Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was referred

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to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On September 10, 2020, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen (14) days. (ECF No. 55.)

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Neither party has filed objections to the findings and recommendations.
Accordingly, the Court presumes that any findings of fact are correct. See Orand v.

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United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983); see also 28 U.S.C. § 636(b)(1).

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Having reviewed the file under the applicable legal standards, the Court finds the Findings
and Recommendations to be supported by the record and by the magistrate judge’s analysis.

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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has

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considered whether to issue a certificate of appealability. Before Petitioner can appeal this

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decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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Where the petition is denied on the merits, a certificate of appealability may issue under 28

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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 (ECF No. 55), the Court finds

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that issuance of 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 September 10, 2020 (ECF No. 55), are

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adopted in full;
2. Petitioner’s Application for a Writ of Habeas Corpus is DENIED as moot as a result of

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his death on May 9, 2019;

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3. The Clerk of the Court is directed to close this case; and

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4. The Court declines to issue the Certificate of Appealability referenced in 28 U.S.C.

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§ 2253.
IT IS SO ORDERED.
DATED: October 21, 2020

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Troy L. Nunley
United States District Judge