(HC) Garrett v. State of California et al

Filing 6

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/7/2022 ADOPTING 5 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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAMEO LOREE GARRETT,

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Petitioner,
v.

No. 2:21-CV-1781-KJM-DMC-P
ORDER

STATE OF CALIFORNIA, et al.,

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Respondents.

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Petitioner, a pre-trial detainee proceeding pro se, brings this petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to Eastern District of California local rules.

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On December 3, 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. No objections to the findings and recommendations

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have been filed.

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The court presumes that any findings of fact are correct. See Orand v. United

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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 Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007)

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(“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court

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and [the appellate] court . . . .”). Having reviewed the file, the court finds the findings and

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recommendations to be supported by the record and by the proper analysis.
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Although it appears from the file that plaintiff’s copy of the findings and

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recommendations was returned, plaintiff was properly served. It is the plaintiff’s responsibility to

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keep the court apprised of his current address at all times. Under Local Rule 182(f), service of

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documents at the record address of the party is fully effective.

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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 December 3, 2021, are adopted in

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This action is dismissed without prejudice for lack of prosecution and

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full;

failure to comply with court rules and orders;

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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 file.

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DATED: January 7, 2022.

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