Khong v. Frauenheim

Filing 23

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/7/2020 ADOPTING the findings and recommendations filed 6/10/2019, in full; DENYING Petitioner's petition for a writ of habeas corpus; 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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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY KHONG,

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No. 2:18-cv-0580 KJM DB P
Petitioner,

v.

ORDER

SCOTT FRAUENHEIM,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this 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 June 10, 2019, the magistrate judge filed findings and recommendations, which were

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

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and recommendations were to be filed within fourteen days. Petitioner has filed objections to the

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findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by proper analysis.

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Under 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

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28 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, the court finds that issuance of

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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 June 10, 2019, are adopted in full;

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2. Petitioner’s petition for a writ of habeas corpus is denied; 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: September 7, 2020.

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