(HC) McKenna v. Unknown
Filing
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ORDER signed by District Judge Troy L. Nunley on 1/5/21 ADOPTING 9 Findings and Recommendations. The Petition for Writ of Habeas Corpus 6 is DISMISSED for failure to exhaust. The Court declines to issue the certificate of appealability. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY PATRICK MCKENNA,
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No. 2:20-cv-01940-TLN-JDP
Petitioner,
v.
ORDER
UNKNOWN,
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Respondent.
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Petitioner Timothy Patrick McKenna (“Petitioner”), a state prisoner proceeding pro se,
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has filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter
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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
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Rule 302.
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On November 17, 2020, the magistrate judge filed findings and recommendations herein
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which were served on Petitioner and which contained notice to Petitioner that any objections to
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the findings and recommendations were to be filed within fourteen days. (ECF No. 9.) Petitioner
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has not filed any objections to the findings and recommendations.
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Accordingly, the Court presumes that any findings of fact are correct. See Orand v.
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United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.
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1983); see also 28 U.S.C. § 636(b)(1).
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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.
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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. 22(b).
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Where the petition is denied on the merits, a certificate of appealability may issue under 28
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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, 484–85 (2000)). For the reasons set forth in the
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magistrate judge’s Findings and Recommendations (ECF No. 9), 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 November 17, 2020 (ECF No. 9), are
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adopted in full;
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2. The Petition for Writ of Habeas Corpus (ECF No. 6) is DISMISSED for failure to
exhaust; and
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3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. §
2253.
IT IS SO ORDERED.
DATED: January 5, 2021
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Troy L. Nunley
United States District Judge
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