Rosiles v. Pfeiffer

Filing 28

[VACATED PER (#30) MINUTE ORDER - CASE REOPENED] ORDER signed by District Judge Kimberly J. Mueller on 01/16/19 DISMISSING the petition for writ of habeas corpus without leave to amend. No COA shall issue. CASE CLOSED (Benson, A.) Modified on 1/17/2019 (Benson, A.).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK RENE ROSILES,

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No. 2:17-cv-02600-KJM-GGH

Petitioner,
v.

ORDER

AT&T Umbrella Benefit Plan No. 3,
Respondent.

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Petitioner filed his petition for writ of habeas corpus pro se on December 12, 2017.

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ECF No. 1. Respondent moved to dismiss on February 12, 2018, ECF No. 9, and petitioner

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opposed on May 21, 2018. ECF No. 16. On October 1, 2018 the magistrate judge to whom this

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matter was assigned filed and served Findings and Recommendations in which he granted the

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parties twenty-one (21) days from the issuance of the Order to file objections and warned that

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failure to do so could result in dismissal of the petition. ECF No. 20. No objections were filed.

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The court presumes that any findings of fact are correct. See Orand v. United

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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 Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations

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of law by the magistrate judge are reviewed de novo by both the district court and [the appellate]

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court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be

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supported by the record and by the proper analysis.

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Under 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 “only if the

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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) opinion recalled

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and superseded on other grounds, 273 F.3d 826 (9th Cir.2001) (quoting Slack v. McDaniel, 529

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U.S. 473 (2000)). For the reasons set forth in the Magistrate Judge’s findings and

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recommendations, the court finds that issuance of a certificate of appealability is not warranted in

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this case.

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Accordingly, IT IS HEREBY ORDERED that:

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The petition for writ of habeas corpus is dismissed without leave to amend
pursuant to Federal Rule of Civil Procedure 41(b);

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No Certificate of Appealability shall be issued; and

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3.

The Clerk of the Court shall close this case.

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IT IS SO ORDERED.

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DATED: January 16, 2019.

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UNITED STATES DISTRICT JUDGE

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