Myles v. Montgomery

Filing 56

ORDER signed by District Judge Troy L. Nunley on 1/8/2020 ADOPTING in full 55 Findings and Recommendations and DISMISSING this case. The Court DECLINES to issue the certificate of appealability. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORLINDO ANTONIO MYLES,

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No. 2:15-cv-00591-TLN-GGH

Petitioner,
v.

ORDER

W.L. MONTGOMERY,

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Respondents.

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Petitioner Orlindo Antonio Myles (“Petitioner”), a state prisoner proceeding through

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counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On November 21, 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. 55.)

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Neither party has filed objections to the findings and recommendations.

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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 set forth in the magistrate judge’s Findings and Recommendations (ECF

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No. 55), 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 November 21, 2019 (ECF No. 55), are

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adopted in full;

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2. The Petition is DENIED in its entirety on the merits and DISMISSED; 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.
IT IS SO ORDERED.
Dated: January 8, 2020

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Troy L. Nunley
United States District Judge
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