Shelmire v. Lizzaraga

Filing 9

ORDER signed by District Judge Kimberly J. Mueller on 5/18/2017 ADOPTING 6 Findings and Recommendations in full. This action is dismissed without prejudice. The court declines to issue the certificate of appealability. CASE CLOSED. (Henshaw, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ERIC LINELL SHELMIRE, 11 Petitioner, 12 13 14 v. No. 2:16-cv-2667 KJM DB P ORDER JOE LIZZARAGA, Respondents. 15 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 18 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On March 9, 2017, the magistrate judge filed findings and recommendations, which were 20 served on petitioner and which contained notice to petitioner that any objections to the findings 21 and recommendations were to be filed within fourteen days. On April 4, 2017, the court granted 22 petitioner’s request for a 30-day extension of time to file objections. Petitioner has not filed 23 objections to the findings and recommendations or anything further. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 27 the file, the court finds the findings and recommendations to be supported by the record and by 28 the proper analysis. 1 1 Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts 2 requires the district court to “issue or a deny a certificate of appealability when it enters a final 3 order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The court must either issue a 4 certificate of appealability indicating which issues satisfy the required showing or must state the 5 reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Where, as here, the 6 petition was dismissed on procedural grounds, a certificate of appealability “should issue if the 7 prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court 8 was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable 9 whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. 10 Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 11 (2000)). For the reasons set forth in the magistrate judge’s findings and recommendations, no 12 jurist of reason would find it debatable whether petitioner is required to obtain an order from the 13 United States Court of Appeals for the Ninth Circuit before he can proceed with the instant 14 application. Accordingly, this court declines to issue a certificate of appealability. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The findings and recommendations filed March 9, 2017 (ECF No. 6) are adopted in 17 full; 18 2. This action is dismissed without prejudice; and 19 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 20 § 2253. 21 DATED: May 18, 2017. 22 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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