(HC) Pilman v. Fisher

Filing 17

ORDER signed by Senior Judge William B. Shubb on 4/27/2021 Adopting in full the 15 findings and recommendations filed 3/12/2021; GRANTING Respondent's 12 motion to dismiss ; DECLINING to issue a certificate of appealability; and DIRECTING the Clerk to enter judgment and close this file. CASE CLOSED (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD PILMAN,

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No. 2:20-CV-1771-WBS-DMC-P

Petitioner,
v.

ORDER

R. FISHER,

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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 March 12, 2021, 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. The court construes Petitioner’s untimely opposition

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to Respondent’s motion to dismiss, filed on March 29, 2021, as Petitioner’s objections to the

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March 12, 2021, findings and recommendations.
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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The findings and recommendations filed March 12, 2021, are ADOPTED

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2.

Respondent’s motion to dismiss, ECF No. 12, is GRANTED;

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3.

The Court DECLINES to issue a certificate of appealability; and

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4.

The Clerk of the Court is DIRECTED to enter judgment and close this

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in full;

file.

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Dated: April 27, 2021

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