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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC LINELL SHELMIRE,

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Petitioner,

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v.

No. 2:16-cv-2667 KJM DB P

ORDER

JOE LIZZARAGA,
Respondents.

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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. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 9, 2017, the magistrate judge filed findings and recommendations, which were

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served on petitioner and which contained notice to petitioner that any objections to the findings

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and recommendations were to be filed within fourteen days. On April 4, 2017, the court granted

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petitioner’s request for a 30-day extension of time to file objections. Petitioner has not filed

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objections to the findings and recommendations or anything further.

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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 the district court to “issue or a deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The court must either issue a

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certificate of appealability indicating which issues satisfy the required showing or must state the

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reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Where, as here, the

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petition was dismissed on procedural grounds, a certificate of appealability “should issue if the

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prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable

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whether the petition states a valid claim of the denial of a constitutional right.’” Morris v.

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Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484

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(2000)). For the reasons set forth in the magistrate judge’s findings and recommendations, no

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jurist of reason would find it debatable whether petitioner is required to obtain an order from the

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United States Court of Appeals for the Ninth Circuit before he can proceed with the instant

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application. Accordingly, this court declines to issue a certificate of appealability.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 9, 2017 (ECF No. 6) are adopted in

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full;

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2. This action is dismissed without prejudice; and

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3. 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: May 18, 2017.

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UNITED STATES DISTRICT JUDGE

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