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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN R. RODRIGUEZ,

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Petitioner,

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No. 2:16-CV-0935-GEB-CMK-P

v.

ORDER

JOEL MARTINEZ,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States

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Magistrate Judge pursuant to Eastern District of California local rules.
On October 18, 2016, the Magistrate Judge filed findings and recommendations

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herein which were served on the parties and which contained notice that the parties may file

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objections within a specified time. No objections to the findings and recommendations have been

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filed.
The court has reviewed the file and finds the findings and recommendations to be

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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

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue. See

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Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons set forth in the

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Magistrate Judge’s findings and recommendations, the court finds that issuance of a certificate of

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appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations filed October 18, 2016, are adopted in

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Respondent’s unopposed motion to dismiss (Doc. 14) is granted;

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The court declines to issue a certificate of appealability; and

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The Clerk of the Court is directed to enter judgment and close this file.

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full;

Dated: January 27, 2017

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