Downs, IV v. Beard
Filing
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ORDER signed by District Judge Kimberly J. Mueller on 3/27/2018 ADOPTING 31 Findings and Recommendations in Full. The 25 and 26 Motions for Relief and Sanctions are DENIED and the 1 Petition for Writ of Habeas Corpus is DISMISSED for failure to prosecute. The Court DECLINES to issue the certificate of appealability referenced in 28 U.S.C.§ 2253. CASE CLOSED. (Fabillaran, J)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GREGORY DOWNS,
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Petitioner,
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No. 2:15-cv-0724 KJM DB P
v.
ORDER
JEFFREY BEARD,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
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corpus under 28 U.S.C. § 2254. Petitioner’s application was filed on April 1, 2015. (ECF No. 1).
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The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302.
On January 16, 2018, the magistrate judge issued findings and recommendations, which
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were served on petitioner and which contained notice to petitioner that any objections to the
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findings and recommendations were to be filed within fourteen days.
On January 26, 2018, petitioner filed a motion for extension of time to file objections to
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the findings and recommendations. (ECF No. 32). The magistrate judge granted the motion,
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giving petitioner until February 28, 2018 to file his objections. (ECF No. 33). At that time, the
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court warned petitioner that no further extensions of time would be granted absent exigent
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circumstances. (Id. at 2). The magistrate judge’s decision to deny petitioner any additional
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extensions of time appears to stem from the fact that petitioner has a well-documented history of
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requesting extensions of time in this matter. (See ECF No. 31 at 2 (documenting court’s grant of
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six extensions of time to petitioner to file an amended habeas petition and court’s denial therein
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of two subsequent extension requests to file same)).
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On February 26, 2018, petitioner filed a second motion for extension of time to file
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objections to the findings and recommendations. (ECF No. 36). Petitioner’s extension request
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was denied given his failure to show the existence of exigent circumstances that would warrant a
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grant of the motion. (See ECF No. 37 at 3).
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The court presumes that any findings of fact are correct. See Orand v. United States, 602
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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.
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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed
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the file, the court finds the findings and recommendations to be supported by the record and by
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the proper analysis.
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Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts
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requires this court to “issue or a deny a certificate of appealability when it enters a final order
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adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may
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issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial
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of a 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. Fed. R. App. P. 22(b). For the reasons set forth in these
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findings and recommendations it does not appear the claims petitioner has sought to raise in this
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action are cognizable under the federal habeas corpus statute or that petitioner has made a
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substantial showing of the denial of a constitutional right. Accordingly, this court will not issue a
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certificate of appealability.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations issued January 16, 2018 (ECF No. 31) are
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ADOPTED in full;
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2. Petitioner’s motions for relief and sanctions (ECF Nos. 25, 26) are DENIED,
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3. Petitioner’s petition for writ of habeas corpus (ECF No. 1) is DISMISSED for failure
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to prosecute; 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.
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DATED: March 27, 2018.
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UNITED STATES DISTRICT JUDGE
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