(HC) Scott v. CDCR, et al

Filing 9

ORDER signed by District Judge Troy L. Nunley on 2/12/21 ADOPTING 7 Findings and Recommendations. The Petition is DISMISSED. The Court declines to issue the certificate of appealability. The Clerk of the Court is directed to close this case. (Kaminski, H)

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Case 2:20-cv-01820-TLN-AC Document 9 Filed 02/16/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAHEED SCOTT, SR., 12 Petitioner, 13 14 15 No. 2:20-cv-01820-TLN-AC v. ORDER CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Respondents. 17 Petitioner Shaheed Scott, Sr. (“Petitioner”), a former state prisoner proceeding pro se, has 18 19 filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On January 20, 2021, the magistrate judge filed findings and recommendations herein 23 which were served on Petitioner and which contained notice to Petitioner that any objections to 24 the findings and recommendations were to be filed within twenty-one days. (ECF No. 7.) On 25 February 8, 2021, Petitioner filed Objections to the Findings and Recommendations (ECF No. 8), 26 which have been considered by the Court. 27 This Court reviews de novo those portions of the proposed findings of fact to which 28 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 1 Case 2:20-cv-01820-TLN-AC Document 9 Filed 02/16/21 Page 2 of 3 1 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 2 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 3 findings of fact to which no objection has been made, the Court assumes its correctness and 4 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 5 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 6 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 7 8 Having reviewed the file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis. 9 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 10 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 11 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 12 Where the petition is denied on the merits, a certificate of appealability may issue under 28 13 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 14 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 15 appealability indicating which issues satisfy the required showing or must state the reasons why 16 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 17 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 18 jurists of reason would find it debatable whether the district court was correct in its procedural 19 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 20 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 21 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484–85 (2000)). For the reasons set forth in the 22 Findings and Recommendations (ECF No. 7), the Court finds that issuance of a certificate of 23 appealability is not warranted in this case. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendations filed January 20, 2021 (ECF No. 7), are 26 ADOPTED IN FULL; 27 28 2. The Petition is DISMISSED; /// 2 Case 2:20-cv-01820-TLN-AC Document 9 Filed 02/16/21 Page 3 of 3 1 2 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and 3 4. The Clerk of the Court is directed to close this case. 4 IT IS SO ORDERED. 5 DATED: February 12, 2021 6 7 8 Troy L. Nunley United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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