(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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY ALAN EBERLY,

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Petitioner,

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No. 2:19-CV-1631-MCE-DMC-P

v.

ORDER

ROBERT NEUSCHMID,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to Eastern District of California local rules.
On June 19, 2020, the Magistrate Judge filed findings and recommendations herein which

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were served on the parties and which contained notice that the parties may file objections within

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the time specified therein. Timely objections to the findings and recommendations have been

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filed.
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 carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Pursuant to 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.

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22(b). 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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The findings and recommendations filed June 19, 2020, (ECF No. 18) are

ADOPTED in full;

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Respondent’s motion to dismiss, ECF No. 9, is GRANTED;

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The Court declines to issue a certificate of appealability; and

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The Clerk of the Court is directed to enter judgment and close this file.

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IT IS SO ORDERED.

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Dated: November 20, 2020

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