Webb v. Holland

Filing 24

ORDER signed by District Judge Troy L. Nunley on 12/18/2019 ADOPTING the Findings and Recommendations filed 10/30/2019 (ECF No. 23 ), in full;DENYING the Petition for Writ of Habeas Corpus (ECF No. 1 ); and the Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253(c). CASE CLOSED (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID CARLOS WEBB,

12

Petitioner,

13
14

No. 2:16-cv-01368-TLN-AC

v.

ORDER

KIM HOLLAND, Warden,

15

Respondent.

16
17

Petitioner David Carlos Webb (“Petitioner”), a state prisoner proceeding pro se, has filed

18

an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred

19

to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20

On October 30, 2019, the magistrate judge filed findings and recommendations herein

21

which were served on all parties and which contained notice to all parties that any objections to

22

the findings and recommendations were to be filed within twenty-one days. (ECF No. 23.)

23

Neither party has filed objections to the findings and recommendations.
Accordingly, the Court presumes that any findings of fact are correct. See Orand v.

24
25

United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

26

reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

27

1983); see also 28 U.S.C. § 636(b)(1).

28

///
1

1
2

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.

3

Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has

4

considered whether to issue a certificate of appealability. Before Petitioner can appeal this

5

decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

6

Where the petition is denied on the merits, a certificate of appealability may issue under 28

7

U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

8

constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of

9

appealability indicating which issues satisfy the required showing or must state the reasons why

10

such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on

11

procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that

12

jurists of reason would find it debatable whether the district court was correct in its procedural

13

ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid

14

claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir.

15

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

16
17

No. 23), the Court finds that issuance of a certificate of appealability is not warranted in this case.

18

Accordingly, IT IS HEREBY ORDERED that:

19

1. The Findings and Recommendations filed October 30, 2019 (ECF No. 23), are adopted

20

in full;

21

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

22

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

23
24
25

§ 2253(c).
IT IS SO ORDERED.
Dated: December 18, 2019

26
27
28

Troy L. Nunley
United States District Judge
2