(HC) Eberly v. Neuschmid

Filing 33

ORDER signed by Senior Judge Morrison C. England, Jr on 11/20/2020 ADOPTING 18 Findings and Recommendations; GRANTING 9 Motion to Dismiss. The Court DECLINES to issue a certificate of appealability; and The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Mena-Sanchez, L)

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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 GARY ALAN EBERLY, 12 Petitioner, 13 14 No. 2:19-CV-1631-MCE-DMC-P v. ORDER ROBERT NEUSCHMID, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to Eastern District of California local rules. On June 19, 2020, the Magistrate Judge filed findings and recommendations herein which 20 21 were served on the parties and which contained notice that the parties may file objections within 22 the time specified therein. Timely objections to the findings and recommendations have been 23 filed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 25 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 Court finds the findings and recommendations to be supported by the record and by proper 27 analysis. 28 /// 1 1 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 2 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 3 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 4 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 5 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 6 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 7 appealability indicating which issues satisfy the required showing or must state the reasons why 8 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 9 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 10 jurists of reason would find it debatable whether the district court was correct in its procedural 11 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 12 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 13 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 14 set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 15 a certificate of appealability is not warranted in this case. 16 17 18 Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed June 19, 2020, (ECF No. 18) are ADOPTED in full; 19 2. Respondent’s motion to dismiss, ECF No. 9, is GRANTED; 20 3. The Court declines to issue a certificate of appealability; and 21 4. The Clerk of the Court is directed to enter judgment and close this file. 22 IT IS SO ORDERED. 23 Dated: November 20, 2020 24 25 26 27 28 2

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