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