(HC) Hunter v. Sacramento Superior Court

Filing 69

ORDER signed by Senior Judge William B. Shubb on 10/4/22 ADOPTING in full 52 Findings and Recommendations and DISMISSING this action without prejudice for lack of prosecution and failure to comply with court rules and orders. The Court DECLINES to issue a certificate of appealability. Petitioner's 62 motion is DENIED AS MOOT. The Clerk is directed to enter judgment and close this file. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SAMPSON HUNTER,

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No. 2:20-CV-1097-WBS-DMC-P

Petitioner,

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v.

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SCOTT JONES,

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ORDER

Respondent.

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

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

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Magistrate Judge pursuant to Eastern District of California local rules.
On February 14, 2022, the Magistrate Judge filed findings and recommendations

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

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objections within the time specified therein. Timely objections to the findings and

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recommendations have been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this Court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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the 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

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

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this 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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1.

The findings and recommendations filed February 14, 2022, are adopted in

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This action is dismissed without prejudice for lack of prosecution and

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full;

failure to comply with court rules and orders;

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3.

The Court declines to issue a certificate of appealability;

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4.

Petitioner’s motion, ECF No. 62, is denied as moot; and

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

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Dated: October 4, 2022

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