(HC) Toft v. D'Agostini et al
ORDER signed by Chief District Judge Kimberly J. Mueller on 1/7/2022 ADOPTING 7 Findings and Recommendations in full. This action is DISMISSED without prejudice for lack of prosecution and failure to comply with court rules and orders. The Court DECLINES to issue a certificate of appealability. CASE CLOSED. (Huang, H)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHN D’AGOSTINI, et al.,
Petitioner, an inmate proceeding pro se, brings this petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge
pursuant to Eastern District of California local rules.
On December 1, 2021, the Magistrate Judge filed findings and recommendations,
which were served on the parties and which contained notice that the parties may file objections
within the time specified therein. No objections to the findings and recommendations have been
The court presumes that any findings of fact are correct. See Orand v. United
States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations
While petition filed a request for status on December 8, 2021, ECF No. 8, that notice does not
address the substance of the findings and recommendations.
of law by the magistrate judge are reviewed de novo by both the district court and [the appellate]
court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be
supported by the record and by the proper analysis.
Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the
Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal
this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.
22(b). Where the petition is denied on the merits, a certificate of appealability may issue under
28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of
appealability indicating which issues satisfy the required showing or must state the reasons why
such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on
procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir.
2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons
set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of
a certificate of appealability is not warranted in this case.
Accordingly, IT IS HEREBY ORDERED that:
The findings and recommendations filed December 1, 2021, are adopted in
This action is dismissed without prejudice for lack of prosecution and
failure to comply with court rules and orders;
The Court declines to issue a certificate of appealability; and
The Clerk of the Court is directed to enter judgment and close this file.
DATED: January 7, 2022.
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