(HC) Barton v. San Joaquin

Filing 43

ORDER signed by Senior Judge Morrison C. England, Jr. on 3/31/2021 ADOPTING IN FULL 42 Findings and Recommendations; GRANTING 40 Motion to Dismiss and DISMISSING 21 Fourth Amended Petition. The Court DECLINES to issue a certificate of appealability. CASE CLOSED. (Tupolo, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM RAY BARTON, 12 Petitioner, 13 14 v. No. 2:19-cv-00148-MCE-DMC-P ORDER WILLIAM BEDDICK, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to Eastern District of California local rules. 20 On February 10, 2021, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within the time specified therein. No objections to the findings and recommendations 23 have been filed. 24 25 26 The Court has reviewed the file and finds the findings and recommendations to be supported by the record and by the Magistrate Judge's analysis. Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 27 Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 28 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 1 1 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 2 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 3 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 4 appealability indicating which issues satisfy the required showing or must state the reasons why 5 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 6 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 7 jurists of reason would find it debatable whether the district court was correct in its procedural 8 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 9 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 10 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 11 set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 12 a certificate of appealability is not warranted in this case. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed February 10, 2021, are adopted in 16 2. Respondent’s unopposed motion to dismiss, ECF No. 40, is granted; 17 3. Petitioner’s fourth amended petition for a writ of habeas corpus is 19 4. The Court declines to issue a certificate of appealability; and 20 5. The Clerk of the Court is directed to enter judgment and close this file. 15 18 21 22 full; dismissed; IT IS SO ORDERED. Dated: March 31, 2021 23 24 25 26 27 28 2

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