(HC) Lambert v. Long

Filing 19

ORDER signed by District Judge John A. Mendez on 4/26/21 GRANTING 16 Motion to Dismiss and ADOPTING 18 Findings and Recommendations. The Court declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment and close this file. (Kaminski, H).

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BRENT JEFFERY LAMBERT,

12

Petitioner,

13
14

No. 2:20-CV-0440-JAM-DMC-P

v.

ORDER

D. LONG,

15

Respondent.

16
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

17
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.
On March 12, 2021, the Magistrate Judge filed findings and recommendations

20
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.
The Court has reviewed the file and finds the findings and recommendations to be

24
25

supported by the record and by the Magistrate Judge's analysis.

26

///

27

///

28

///
1

1

Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

2

Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal

3

this 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

Accordingly, IT IS HEREBY ORDERED that:

17

1.

The findings and recommendations filed March 12, 2021, are adopted in

19

2.

Respondent’s unopposed motion to dismiss, ECF No. 16, 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.

18

full;

22
23
24
25

DATED: April 26, 2021

/s/ John A. Mendez
THE HONORABLE JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE

26
27
28
2