Griffin v. Foulk

Filing 29

ORDER signed by District Judge Troy L. Nunley on 11/21/19 ADOPTING 26 Findings and Recommendations. The Petition for Writ of Habeas Corpus 1 is DENIED. The Court declines to issue the certificate of appealability. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY C. GRIFFIN,

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Petitioner,

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No. 2:14-cv-00837-TLN-AC

v.

ORDER

F. FOULK,

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Respondent.

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Petitioner Timothy C. Griffin (“Petitioner”), a state prisoner proceeding pro se, has filed

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an 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 August 29, 2019, 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 twenty-one days. (ECF No. 26.)

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Neither party has filed objections to the Findings and Recommendations.1
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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The Court notes Petitioner requested, and received, an extension of time of approximately
thirty-days to file objections to the Findings and Recommendations (ECF Nos. 27–28); however,
Petitioner still did not file any objections, and his extended deadline has now passed.
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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 set forth in the magistrate judge’s Findings and Recommendations (ECF

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No. 26), the Court finds 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 August 29, 2019 (ECF No. 26), are adopted

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in full;

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2. The Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED; and

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3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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IT IS SO ORDERED.
Dated: November 21, 2019

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