Clark v. Fisher

Filing 44

ORDER signed by District Judge Troy L. Nunley on 10/29/2019 ADOPTING the Findings and Recommendations, filed 8/19/2019 (ECF No. 43 ), in full; DISMISSING 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. CASE CLOSED (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAKE CLARK,

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No. 2:17-cv-02574-TLN-GGH
Petitioner,

v.

ORDER

RAYTHEL FISHER, JR.,
Respondent.

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Petitioner Jake Clark, a state prisoner proceeding pro se, has filed an application for a writ

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

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On August 19, 2019, the magistrate judge filed findings and recommendations herein

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which were served on Petitioner and which contained notice to Petitioner that any objections to

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the findings and recommendations were to be filed within twenty-one (21) days. (ECF No. 43.)

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Petitioner has not filed any objections to the findings and recommendations.

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Accordingly, the Court presumes that any findings of fact are correct. See Orand v.

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

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

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1983); see also 28 U.S.C. § 636(b)(1). Having reviewed the file, the Court finds the Findings and

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Recommendations to be 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 Court has

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

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

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

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

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

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

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

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

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

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

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

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2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons

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set forth in the magistrate judge’s Findings and Recommendations (ECF No. 43), the Court finds

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that issuance of a certificate of appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, filed August 19, 2019 (ECF No. 43), are adopted

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in full;

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2. The Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED; 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.
IT IS SO ORDERED.
Dated: October 29, 2019

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Troy L. Nunley
United States District Judge

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