Rodriguez v. Martinez

Filing 17

ORDER signed by District Judge Garland E. Burrell, Jr on 1/27/2017 ADOPTING 16 Findings and Recommendations and GRANTING 14 Motion to Dismiss. The court declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED; (Washington, S)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN R. RODRIGUEZ, 12 Petitioner, 13 14 No. 2:16-CV-0935-GEB-CMK-P v. ORDER JOEL MARTINEZ, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to Eastern District of California local rules. On October 18, 2016, the Magistrate Judge filed findings and recommendations 20 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within a specified time. No objections to the findings and recommendations have been 23 filed. The court has reviewed the file and finds the findings and recommendations to be 24 25 supported by the record and by the Magistrate Judge’s analysis. 26 /// 27 /// 28 /// 1 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 2 court has considered whether to issue a certificate of appealability. Before petitioner can appeal 3 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 4 22(b). Where the petition is denied on the merits, a certificate of appealability may issue “only if 5 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 6 2253(c)(2). The court must either issue a certificate of appealability indicating which issues 7 satisfy the required showing or must state the reasons why such a certificate should not issue. See 8 Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of 9 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 10 debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of 11 reason would find it debatable whether the petition states a valid claim of the denial of a 12 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 13 McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons set forth in the 14 Magistrate Judge’s findings and recommendations, the court finds that issuance of a certificate of 15 appealability is not warranted in this case. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed October 18, 2016, are adopted in 19 2. Respondent’s unopposed motion to dismiss (Doc. 14) is granted; 20 3. The court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to enter judgment and close this file. 18 22 full; Dated: January 27, 2017 23 24 25 26 27 28 2

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