(HC) Toft v. D'Agostini et al

Filing 9

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)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID TOFT, 12 No. 2:21-CV-1672-KJM-DMC-P Petitioner, 13 v. 14 ORDER JOHN D’AGOSTINI, et al., 15 Respondents. 16 Petitioner, an inmate proceeding pro se, brings this petition for a writ of habeas 17 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 19 pursuant to Eastern District of California local rules. 20 On December 1, 2021, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. No objections to the findings and recommendations have been 23 filed.1 The court presumes that any findings of fact are correct. See Orand v. United 24 25 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 26 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations 27 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. 1 1 28 1 of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] 2 court . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 3 supported by the record and by the proper analysis. 4 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 5 Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 6 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 7 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 8 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 9 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 10 appealability indicating which issues satisfy the required showing or must state the reasons why 11 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 12 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 13 jurists of reason would find it debatable whether the district court was correct in its procedural 14 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 15 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 16 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 17 set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 18 a certificate of appealability is not warranted in this case. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations filed December 1, 2021, are adopted in 2. This action is dismissed without prejudice for lack of prosecution and 21 22 23 full; failure to comply with court rules and orders; 24 3. The Court declines to issue a certificate of appealability; and 25 4. The Clerk of the Court is directed to enter judgment and close this file. 26 DATED: January 7, 2022. 27 28 2

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